The topic of gender-based violence has recently come back into the spotlight across news and social media channels worldwide. Since the tragic abduction and murder of Sarah Everard in the UK, people have been calling for better protection for women. This event has also been a catalyst for other victims to come forward to make allegations of rape culture in schools and to highlight the ongoing problems of domestic violence and sexual harassment. Clearly there are systemic flaws in our society’s handling of gender-based violence and employers have a part to play in generating change.
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.
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?
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.
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):
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.