The Covid-19 pandemic has seen a dramatic rise in reports of domestic abuse.
Lock-down and the blurring of boundaries between work and home have left many victims confined at home with their abusers and unable to access support. On 29 April 2021, the Domestic Abuse Act 2021 (the Act) received Royal Assent, introducing much needed statutory protection for victims of abuse. What does the Act mean for employers and how can and should they support employees who are victims of abuse?
What is domestic abuse?
Behaviour is defined as "abusive" under the Act if it consists of any of the following: physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse or psychological, emotional or other abuse. The behaviour can consist of a single incident or a course of conduct, taking place between those aged 16 or over who are (or have been) intimate partners or family members. The legislation is gender neutral, in recognition of the fact that anyone can be a victim of domestic abuse.
"Economic abuse" is behaviour that has a substantial adverse effect on the victim's ability to acquire, use or maintain money or other property or obtain goods or services (such as food or clothing). This could include preventing a person from working (for instance by taking away or restricting use of their laptop or phone) or restricting access to a bank account or wages.
What guidance is available for employers?
In September 2020, the CIPD and the EHRC published a joint guide, 'Managing and supporting employees experiencing domestic abuse'. It recommends that employers should have clear policies and frameworks of support for employees.
BEIS published a report in January 2021 'Workplace support for victims of domestic abuse'. It emphasises the positive role employers can play if they can spot signs of domestic abuse and offer support to employees who may be victims. ACAS has also updated its guidance, 'Working from home during the coronavirus pandemic', to include a section on domestic abuse.
What are an employer's obligations?
- Health and safety
Under the Health and Safety at Work Act 1974 employer's must provide a safe place to work for all staff, including when working at home. Risk assessments should assess the potential for domestic abuse – up to 75% of victims of domestic abuse are targeted by their abuser at their workplace. Having a crisis management protocol for emergencies threatening health and safety is also a good idea. This could address questions such as when to get the police involved and what to do if an abuser turns up at the workplace. - Disability
It is possible that physical and mental abuse could result in employees developing long-term injuries or conditions which amount to disabilities under the Equality Act 2010 (EqA 2010). If so, the employer will be under a duty to make reasonable adjustments. Training for managers should include signs of potential domestic abuse such as problems with performance, attendance, productivity or confidence. The stigma victims may feel may be a challenge for employers if they are unable or unwilling to come forward about their experiences. Clear policies and a zero-tolerance approach can help encourage victims to feel supported to seek support. Ways of alleviating pressure via reasonable adjustments could be by altering working hours/duties and dealing with absence or performance management sensitively. - Harassment
Under the EqA 2010, an employer can be liable if it fails to protect an employee from harassment in the workplace, where the reason for that failure is a protected characteristic. So complaints from any employee must be taken seriously, including those who are male or transgender, not only those who are female. If harassment is not related to a protected characteristic, but is behaviour which amounts to harassment, and which the perpetrator knows or ought to know is harassment, then the victim may be able to bring a claim under the Protection from Harassment Act 1997. - Duty of mutual trust and confidence
A failure to support an employee suffering from domestic abuse, especially if an employer fails to comply with their own policies, could amount to a breach of the implied duty of mutual trust and confidence. That could result in the employee resigning and bringing a claim for constructive unfair dismissal. Having and implementing appropriate policies will be an important part of an employer's defence of any such claim.
What if the employee is the suspected abuser?
Employers may also have to deal with allegations of abuse against employees. The CIPD and EHRC guidance recommends a zero tolerance approach to all forms of abuse. However, whether it is fair for an employer to discipline or dismiss will depend on its policies and the usual principles of fairness, including whether its stance on conduct outside work is clear.
A disciplinary investigation may need to consider where the abuse takes place and whether employer equipment and/or time are involved. The allegation itself then needs to be carefully considered. Is the employer considering action for the conduct itself, for damage to its reputation, or for damage to the relationship of trust and confidence? The employer will have to make sure that the Acas Code is followed and that any disciplinary/dismissal process is carried out fairly. The progress and outcome of any police investigation may also be relevant.
What practical steps can employers take now?
- Domestic abuse policy
Review or introduce your domestic abuse policy and ensure it is consistent with other relevant policies such as the disciplinary policy. It should set out a zero—tolerance approach, common signs of domestic abuse and the support available to both employees and managers. - Offer support
Make sure employees know where to go for support. In addition, if you have an employee experiencing abuse, find a way to communicate safely, for instance by text message if calls are not possible, or via a different email address. Other things to consider offering are flexibility around working hours or location, or time off to attend support appointments and find alternative accommodation. - Training and raising awareness
Training and awareness will be the key to employers implementing meaningful strategies on domestic abuse. Managers should receive appropriate training on how to support employees sensitively, with awareness of confidentiality issues. Considering rolling out training to all staff to raise awareness and highlight the support available and to introduce or update them on your policies
For help with discussing or implementing any of the above practical steps, please contact us.
