The McDonald's Model: What happens next following a McFlurry of harassment complaints?

Initial Complaints of Sexual Harassment

In 2019, the Bakers, Food and Allied Workers Union said it had received around 1,000 complaints from workers across UK branches of McDonald’s [1], although it was not clear whether these complaints were made against multiple franchisees or McDonald's as the franchisor. The complaints were said to encompass a range of discriminatory behaviours, including sexual harassment.

S23 Agreement with Equality and Human Rights Commission (EHRC)

Whilst news reports indicated that McDonald’s were taking some steps to combat this wave of complaints, news broke in early 2023 that McDonald’s had agreed to enter into a s23 agreement with the EHRC [2].

Under section 23 of the Equality Act 2006, the EHRC can enter into legally binding agreements whereby organisations agree not to commit breaches of the Equality Act 2010. This can occur both pre and post-litigation; indeed any situation in which there is evidence of a breach of the Equality Act 2010 . The agreement will usually include concrete steps for the organisation to take, such as delivery of anti-harassment training, within a specified period of time, monitoring of the organisation, and agreement when the plan will be reviewed. If a company refuses to enter into a s23 agreement with the EHRC, they will likely be subject to a formal investigation by the Commission and finding of unlawful behaviour.

Following the making of a s23 agreement, if the Commission thinks that a person or party to a section 23 agreement is likely to commit an unlawful act, or fail to comply with an undertaking under the s23 agreement it may apply to the County Court in England and Wales, or the Sheriff in Scotland, for an order requiring the person/party to comply or restraining them from committing the discriminatory action [3] under s24 Equality Act 2006. Such an injunction may be sought whether or not the EHRC knows or suspects that a person has or may be affected by the unlawful act or by the application of a discriminatory practice.

What Did McDonald’s Agree To?

As part of their s23 agreement, McDonald's specifically agreed to:  

• Communicate a zero tolerance approach to sexual harassment;
• Conduct an anonymous survey of workers about workplace safety;
• Enhance policies and procedures to prevent sexual harassment and improve responses to complaints;
• Deliver anti-harassment training for employees;
• Introduce specific training and materials to help managers identify areas of risk within their restaurants and take steps to prevent sexual harassment;
• Support the uptake of policy and training materials by franchisees within their independent organisations to support reporting of sexual harassment;
• Monitor progress towards a safe, respectful and inclusive working environment.

It is worth pointing out that all of these steps should be occurring within a workplace anyway, and certainly within an organisation that has the resources of McDonald’s. However, they are not alone in entering into this type of agreement. Organisations such as Ikea, the DWP, Highways England, Sainsbury's, Jaguar Land Rover and Network Rail have all entered into s23 agreements with the EHRC in recent years. 

The Worker Protection (Amendment of Equality Act 2010) Bill 

In October 2024, the Worker Protection (Amendment of Equality Act 2010) Bill introduced a new positive duty on employers to take reasonable steps to prevent harassment of their staff, including sexual harassment. If the Employment Tribunal concludes that an individual has been harassed because their employer did not take reasonable preventative steps, it can uplift their compensation by up to 25%. Because of the wording of the Bill, it is inevitable that judicial clarification will need to be sought via the appellate courts as to what constitutes ‘reasonable’ steps for an employer to have taken to prevent harassment, including harassment perpetuated by third parties. There has not yet been a case in the Tribunal that has considered the new Bill at the remedy stage (at the time of publication); understandably, no employer wants to be the first.

Latest Reports of Sexual Harassment 

Following the announcement of the s23 agreement in early 2023, the BBC launched an investigation [4] into working conditions in McDonald’s. They compiled more than 100 allegations over a 5 month period, of which 31 related to sexual assault, and 78 related to sexual harassment. After the BBC’s investigation, several news outlets reported that McDonald’s had enlisted PwC to evaluate its establishments and assess worker welfare.

However, during the recent Business and Trade Committee meeting on 7 January 2025, McDonald's CEO Alistair Macrow disclosed to MPs that 75 allegations of sexual harassment had been made by workers over the last 12 months [5]. Of those, 47 had been upheld with disciplinary action taken, resulting in 29 workers being dismissed.

The BBC recently reported that more than 300 people have been in touch with the EHRC since their original investigation in 2023 [6]. Leigh Day is handling a potential group claim and has stated that over 700 people have already contacted them to join the claim [7]. Most recently, the EHRC has confirmed it is working with McDonald's to ‘strengthen’ the section 23 agreement [8]. 

What Does This Mean?

There is no doubt that McDonald’s are facing a PR crisis and hard questions from lawmakers as to why the working environment for their staff seemingly remains a hotbed of harassment, despite the actions they have taken so far to combat this issue. Where franchisors are usually reluctant to get too involved in the day to day running of their franchisees, for McDonald’s there is a clear need to step in and overhaul minimum standards that they expect their franchisees to follow to salvage some of their reputation.

McDonald’s spokespersons have said that they have hired their first ever ‘head of safeguarding’ and instituted company-wide programmes to improve safeguarding, awareness and training[9]. They have created a digital whistleblowing channel called Red Flags, and appointed a specific investigations handling unit. Overdue though these measures may be, there is no doubt that any steps taken towards rooting out what appears to be a rampant culture of sexual harassment for workers, must be seen as a positive. A key question for any claims brought to the Employment Tribunal will be when these steps were taken, as this will inform whether or not McDonald’s’ anticipatory duty to their staff was discharged in the wake of the new Worker Protection (Amendment of Equality Act 2010) Bill.

What Happens Next?

A culture of sexual harassment is likely to be rampant in precisely a workplace such as McDonalds: it is a younger workforce; the majority are on zero/low hour contracts; there will be no visible HR around; many workers are in positions of economic instability; and workers are vulnerable to any abuses of power perpetrated by management. It is clear that successful management of sexual harassment in the workplace is a priority in both Parliament and the courts. Reform is necessary and overdue; according to the Trades Union Congress (TUC), around 52% of women have experienced some form of sexual harassment in the workplace. Other surveys have placed this figure as much higher.

In the Employment Tribunal

Any cases that make it to the Employment Tribunal (and were brought after 26 October 2024) will scrutinise what measures the employer had in place to prevent the harassment from occurring, and how robust these systems were. It could be inferred from the various investigations that have taken place in the last year that there should be a higher number of complaints than the 75 that have been disclosed to McDonald’s in the last 12 months. The Tribunal will want to interrogate whether there is reason for this: is the process for reporting harassment clear? Is it accessible? Is it confidential? Will an employee face reprisal for making a report? Have staff been consulted to see what their views on the system are? Once a report is made, who will investigate it? Are these reports handled with sensitivity? Are those investigating trained appropriately to do so? Are the victims supported adequately throughout this process? What steps will be put in place to ensure the same scenario does not happen again? These are just some of the questions that McDonald’s will need to answer throughout the Tribunal process, and will factor into judicial decision-making around the newly-implemented Bill, and how that might affect the question of remedy.

As a result of the Bill, there is perhaps even greater incentive for a Claimant to want to ‘have their day in court.’ For any employee in the position of bringing a claim of unfair dismissal to the Tribunal in connection to potential harassment suffered, including constructive dismissal, it is well established that a declaration from the Tribunal that a dismissal was unfair holds separate value from financial compensation, even if offered the maximum sum that could be awarded if successful on liability [10]. Arguably, there is as much value in a declaration from the Tribunal of discrimination/harassment, although this is not an established principle. Therefore, it might be difficult for McDonald’s to settle some of these claims outside of court, even if willing to pay maximum compensation to the potential Claimants.

By the EHRC

As discussed, if the EHRC suspects that an organisation has failed, or is unlikely to comply with its obligations under a s23 agreement, it may apply to the court for an order requiring compliance/an injunction to prevent certain actions. Unfortunately, it seems to be exceptionally rare that this path is taken. One early example from 2010 is an application made by the Commission to prevent unlawful discrimination by the British National Party due to the terms on which it admitted people to its membership [11]. Another is in 2017 when the EHRC successfully applied for a s24 injunction to prevent a prolific individual landlord from applying blatantly discriminatory letting criteria [12]. Further examples have been difficult to find.

The Commission itself has stated that they may decide not to seek an order if there are exceptional circumstances requiring a variation to the s23 agreement. In the majority of circumstances, they would expect employers to anticipate their non-compliance with a section 23 agreement and to seek a variation with in advance. In this case, it appears as though that has not occurred and McDonald’s is only now seeking to vary their agreement with the Commission. The question is, what will the Commission do about this, especially in light of growing public frustration over the situation, and indeed their own words that “over the last few years we’ve had a focus on tackling harassment in the workplace [13]?” It is evident that the actions for McDonald’s to take as part of the original s23 agreement has not altered the culture significantly enough in the past year to evince real change. 

Conclusion

Despite some steps taken by McDonald’s to overhaul their culture, change does not appear to be coming fast enough. They are likely not alone in trying to root out a cultural problem amongst the workforce, as the issues that leave McDonald’s workers vulnerable to being harassed are hardly unique to this workplace- they are pervasive throughout the hospitality and entertainment industries. Many are awaiting the first example of the use of the Worker Protection (Amendment of Equality Act 2010) Bill in the Employment Tribunal (and beyond) for a large company, and the factors that the Tribunal take note of may inform the approach that companies need to take to prevent claims being made against them. It remains to be seen if the EHRC will take further action when issues come to light after a s23 agreement is already in force (and whether or not they will be challenged if no action is forthcoming).

[1] Maya Oppenheim ‘More than 1,000 reports of sexual abuse and harassment at UK McDonald’s, campaigners say’ (The Independent, 20 July 2019) https://www.independent.co.uk/news/uk/home-news/mcdonalds-sexual-harassment-protests-abuse-workers-a8937186.html accessed 23 January 2025

[2] EHRC ‘McDonald’s signs a legal agreement with EHRC to protect staff from sexual harassment’ (Equality and Human Rights Commission, 8 February 2023) https://www.equalityhumanrights.com/media-centre/news/mcdonalds-signs-legal-agreement-ehrc-protect-staff-sexual-harassment accessed 23 January 2025

[3] Equality Act 2006, ss 23-24

[4] Noor Nanji, Zoe Conway, Ellie Layhe ‘McDonald's workers speak out over sexual abuse claims’ (BBC, 18 July 2023) https://www.bbc.co.uk/news/business-65388445 accessed 23 January 2025

[5] Business and Trade Committee, Oral evidence: Make Work Pay: Employment Rights Bill, https://committees.parliament.uk/oralevidence/15199/html/HC 370, Q123

[6] Noor Nanji and Zoe Conway ‘McDonald's workers make fresh harassment claims’ (BBC, 7 January 2025) https://www.bbc.co.uk/news/articles/c75ngl49695o accessed 23 January 2025

[7] Leigh Day, ‘More than 700 McDonald’s junior crew members join legal action against fast-food giant over allegations of widespread harassment’ (Leigh Day, 7 January 2025)

[8] Noor Nanji and Zoe Conway ‘McDonald's workers make fresh harassment claims’ (BBC, 7 January 2025) https://www.bbc.co.uk/news/articles/c75ngl49695o accessed 23 January 2025

[9] Sarah Butler and Kalyeena Makortoff ‘McDonald’s sacked 29 people after sexual harassment allegations, MPs told’ (The Guardian, 7 January 2025) https://www.theguardian.com/business/2025/jan/07/mcdonalds-workers-legal-action-harassment-claims accessed 23 January 2025

[10] Telephone Information Services v Wilkinson [1991] IRLR 148, approved by the Court of Appeal in Gibbs v Maidstone and Tunbridge Wells NHS Trust [2010] IRLR 786.

[11] The Commission for Equality and Human Rights v Griffin and others [2010] EWHC 3343 (Admin)

[12] EHRC ‘Ensuring potential tenants are not racially discriminated against’ (EHRC, 8 November 2017) https://www.equalityhumanrights.com/our-work/legal-action-search/ensuring-potential-tenants-are-not-racially-discriminated-against accessed 23 January 2025

[13] EHRC ‘Using section 23 agreements to help organisations improve their approach to equality’ (EHRC, 25 August 2021) https://www.equalityhumanrights.com/media-centre/blogs/using-section-23-agreements-help-organisations-improve-their-approach-equality accessed 23 January 2025