ECHR Section 23 Agreements – do they signal real change?

Some of you may have seen reports that McDonald’s Restaurants Limited (McDonald’s) has signed a legally binding agreement with the Equalities and Human Rights Commission (ECHR) - a “section 23 agreement” - to protect its staff from sexual harassment.  Although the extent of alleged sexually harassing behaviour within McDonald’s has not been confirmed, reports from the Bakers, Food and Allied Workers Union (BFAWU), which represents McDonald’s workers, suggested that complaints of sexual harassment have been many; moreover, the Union said that the business has often used non-disclosure agreements to avoid cases being disclosed.

What is a Section 23 Agreement, what implications does it have for employers and do they signal real change in equality rights?

What is a Section 23 Agreement

The EHRC is the regulatory body responsible for enforcing the Equality Act 2010.  Under section 23 of the Equality Act 2006, the EHRC is given the power to enter into legally binding agreements with organisations under which the organisations agree not to commit breaches of the Equality Act 2010, usually in an area where there has been previous concern, such as sexual harassment.  The agreement will usually include steps (such as manager training, redrafting policies) which should be taken and a period of time over which the plan will be reviewed.  Other organisations who have signed section 23 agreements include Sainsbury’s, the DWP and Highways England. A section 23 agreement does not need to be the result of litigation; the EHRC has the power to enter into agreements where there is evidence of a breach of the Equality Act 2010.  If an organisation fails to meet the requirements under the agreement, then legal action can be brought against it.

Meaningful change?

Sexual harassment and harassment at work is wrong.  Full stop.

However, when we think about what measures are proposed in order to call out or stamp out harassment, these should, in my view, suit all stakeholders within the business. Often initiatives around equality come from initiatives or diktats from senior leaders which may not reflect what’s going on on the ground within a business.  In my experience, where measures work best and are most effective is when all parts of a business work together – they understand why there is a need for a change and they are all invested in making a difference.  To achieve this, ask all parts of the business where they see the issues are and ask them to think how practices and behaviours can be improved.  Online staff surveys are useful, but think about all parts of your business, does everyone have access to an online form? What about staff who work on zero-hours contracts or unsociable hours – are they asked their views or have access to advice or support? Often the victims of such behaviours are those who do not have a voice so ensure everyone is heard.

Setting targets is great, but are they realistic or merely hopes? How are you going to measure them? How will you know what’s been achieved? What’s often missing from discussions around targets is what does “success” look like – if an organisation doesn’t know what their end goal is, how does it know what has been achieved? Changing culture does not happen overnight so set realistic goals that have a workable timeline.  

Benefits of Section 23 Agreements

There are major benefits to entering into a section 23 agreement: they can be more cost effective for both the business and the EHRC as they avoid lengthy formal investigation or taking court action.  They also raise the profile of the benefits of updating your workplace policies or introducing ED&I training (to which there are also legal benefits if you run legal equality training).

From an organisation’s perspective it perhaps allows them to get in front of the narrative and show a positive action being taken.  However, if there is to be meaningful change, it cannot be all talk; one must also learn to walk.

To discuss what steps your organisation can take to raise awareness of harassment at work, updating your organisation’s policies and more importantly, introducing and delivering manager and workplace equality training, then please get in touch.  We are delivering online or in person leadership ED&I training right now so I would welcome delivering courses for your people leaders and workforces.