Gender-Based Violence and Domestic Abuse – employers’ responsibilities and best practice

A recent report by the WHO showed that one in three women globally experience some form of physical or sexual violence in their lifetime. The WHO Director-General has stated that “violence against women is endemic in every country and culture” and that it is down to “governments, communities and individuals” to change such deep-rooted and harmful attitudes. It has become increasingly clear in recent years that employers can and should be playing a part in reinforcing change and many businesses have developed robust sexual harassment and gender violence policies in response. 

The Covid-19 pandemic has only exacerbated the crisis, with emerging data pointing to a “Shadow Pandemic” in which violence against women has intensified. Now more than ever employers should consider what more they can do in this area.  This article will look at the legal position as it relates to employers and give some suggestions for best practice.

Gender-based violence (“GBV”) denotes the harmful acts which are directed towards an individual based on his or her sex or gender identity. This can be experienced by both men and women, although women are disproportionately affected. GBV includes verbal, physical, sexual, emotional and psychological abuse, threats, coercion and economic or educational deprivation. Whilst there is no specific offence of GBV, there are other offences that constitute GBV and these include domestic abuse and sexual harassment, both of which can be experienced in the workplace. 

The legal position 

Sexual harassment is unlawful under the Equality Act 2010. Employers should be aware that if sexual harassment takes place in the workplace, the employer can be held liable where the wrongdoer is acting in the course of employment. The employer can only avoid vicarious liability if it can show that it took all reasonable steps to prevent the employee from doing the unlawful act. Employers should be aware that work-related social events may be considered extensions of the workplace.

Whilst non-disclosure agreements (“NDAs”) have previously been used, most often in the context of an agreement to settle threatened claims, as a means of protecting employers’ commercial interests and reputation in relation to sexual harassment claims, the Solicitors Regulation Authority has now warned that NDAs should not be used as a means of restricting employees from reporting concerns. The government also announced plans for legislation to address the misuse of NDAs in covering up sexual harassment claims in 2019 (though changes have yet to be implemented). The use of settlement agreements (“SAs”) has also been subject to debate and the prevailing view now is that employers should not need to rely on SAs if they have taken reasonable steps to prevent sexual harassment from occurring. In any case, a SA should certainly not be the automatic response for employers and certainly not used in place of investigating allegations. The stories which have emerged in the last few years following the #MeToo movement only serve as a reminder of the significant risk to reputation when such allegations are ignored and/or “covered up”. 

Addressing domestic abuse is a key part of an employer’s duty to of care towards employees and employers have a legal responsibility under the Health and Safety at Work Act 1974 to ensure that employees are not exposed to unnecessary risk, both physically and mentally, when at work. The standard of care is determined by the requirements of reasonableness and employers must therefore take reasonable steps to keep employees safe from harm.  The position is made more complex by the move to widespread home-working, something that was prompted by the pandemic but is likely to continue on a more permanent basis in many businesses.  The employer’s duty of care extends to its employees in the home-working environment.  Where an employee lives with his or her abuser, and the primary place of work is his or her home, how does an employer ensure that the employee is safe?       

Practical impact of the gender violence movement

Recent events have placed even more onus on businesses to address all types of GBV in the workplace, be it sexual harassment or domestic violence. Employers must recognise that it is simply not enough to act after the event. 

It is estimated that more than half of women overall and nearly two-thirds of women aged 18-24 in the UK have experienced sexual harassment at work. For the employer to show that they have taken reasonable steps to prevent sexual harassment, they must have taken such steps before the harassment occurred. Even then, there are relatively few cases in which a “reasonable steps” defence has been successful. Similarly, case law demonstrates that the presence of a policy alone is not enough and the employer must take practical steps to implement, actively bringing it to the attention of staff, updating it and re-publicising it on a regular basis and providing meaningful training, it if it wishes to try and rely on the “reasonable steps” defence. 

Whilst employers may have both victims and perpetrators of domestic violence working for their business, currently only 5% of employers in the UK have a specific domestic abuse policy. This lack of action arguably isolates victims and adds to the culture of silence. It is likely that recent events will be a catalyst for change as more and more businesses turn to addressing the issue. There is little case law guidance in this area but employers are advised to carry out risk assessments and consider implementing safety measures to fulfil their duty of care. Safety measures to consider may relate to building access, travel arrangements or anything else that would help prevent an abuser from reaching the employee at work.  

Employer best practice

1. Handing allegations seriously and with sensitivity 

Employers should treat all allegations of sexual harassment or domestic violence with the utmost concern and sensitivity as the employee is likely to be stressed and may need time off or counselling. Early engagement is vital and the employer should take preliminary steps to investigate the allegations and maintain a constant dialogue with the employee to ensure that the appropriate action is taken. It is advisable for the person providing this support, most likely a line manager or member of HR, to have received specialist training in order to give informed advice on taking action e.g. whether the police should be contacted. Employers should maintain confidentiality and take steps to prevent victimisation of the individual that has come forward. They should also monitor the situation and provide continued support after action has been taken. In circumstances where the alleged perpetrator is also an employee, employers should remain impartial and avoid knee-jerk reactions which could be taken as evidence of a decision having been made as to a person’s guilt prior to any investigation and/or disciplinary process.  A tricky balancing act may need to be maintained, taking into account the rights of both accuser and accused.

2. Policies 

Whilst sexual harassment policies have been commonplace for a while, especially following the #MeToo movement, it is now also best practice to have a domestic violence policy. Policies must be regularly updated, properly implemented, and publicised to employees. The employer should start the policy by expressing their zero-tolerance stance on the topic. 

A sexual harassment policy should provide a clear definition of sexual harassment. Whilst there is not a globally recognised definition, ACAS have defined it as “unwanted behaviour of a sexual nature”.  The prohibited conduct should then be set out, using examples to demonstrate how it could occur in the workplace. The policy should explain the process for reporting concerns and provide details of both informal and formal complaints handling procedures. It should also clearly state the consequences of sexual harassment for perpetrators (such as disciplinary action or in serious cases of criminal conduct, reporting to the police). 

A domestic violence policy should take a similar approach in defining what it is intended to cover before setting out a 3-stage approach to domestic violence (this structure is not mandatory but is used extensively around the world):

1. Recognise – involves awareness building through training, leaflets, posters and other initiatives as well as carrying out risk assessments and implementing safety measures.
   
   
2. Respond – involves discussing with the employee their preferred response in terms of reporting and providing a support package to assist them.
   
   
3. Refer – a light-touch policy would signpost the employee to external support, whilst a more involved policy would invest in and refer employees to trained individuals within the company such as Domestic Violence Champions.

3. Training 

Training is an essential part of an employer’s approach to GBV in the workplace. Ideally all employees should be trained to achieve the widest engagement possible and to raise awareness at all levels. In addition, employers should offer specialist training for line managers and/or HR members who will be directly dealing with complaints and allegations and implementing relevant policies. Employers are encouraged to partner with external specialists and charities to provide inventive and engaging training sessions. 

For employers that wish to develop a trained internal support network, they could invest in an Employment Assistance Programme (“EAP”) to facilitate immediate counselling and face-to-face support for affected employees. Similarly, employers could train up Domestic Violence Champions (a similar concept to “Mental Health First Aiders”) to spot signs of abuse and provide support. 
 
4. Support packages 

Many employers are now offering support packages to employees affected by sexual harassment or domestic violence. Whilst there is a broad spectrum of support that can be offered, at a basic level most employers are providing free confidential counselling services as part of an EAP or through an external provider. In relation to domestic violence, employers are also offering a combination of emergency accommodation, paid leave, flexible working hours, emergency financial support, legal support and relocation. These offerings are not mandatory and ultimately it is for the employer to decide how much they wish to invest in this area. 

5. Wider engagement with the topic 

Many companies are now partnering with charities to show their support in this area and this should be firmly on employers’ agendas. Forming links with charities such as UN Women, Women’s Aid, Victim Support, The Survivors Trust and Refuge will enable companies to increase awareness in the workplace and strengthen visibility. Many charities also offer confidential helplines, for example Refuge’s National Domestic Abuse Helpline. 

Companies can also sign up to various initiatives for free such as the Employers Initiative on Domestic Abuse or the Corporate Alliance Against Domestic Abuse. These initiatives can help employers to share best practice approaches with other members to develop robust internal policies. 

Key takeaways

• Employers must take reasonable steps to prevent sexual harassment before incidents occur to fulfil their legal obligations.
•  Employers have a legal duty to ensure employees’ health and safety at work – this includes taking reasonable steps to ensure that employees are protected against domestic abuse and/or harassment at work
• Simply having a policy is not enough – implementation is key. 
• Now is the time to revisit and ensure policies are up to date.
• Training and education are crucial so that employees can lead by example. 
• Employers should seriously consider the wider initiatives and partnerships available to communicate a clear message on the issue of GBV and to play their part in delivering change. 

For more resources on this topic and others, please access our The Ethical Workplace & The Law in Practice site, including an international webinar on domestic violence in the workplace.