Domestic abuse in the workplace – a new employment issue?

Insight

17.10.2022

Incidents of domestic abuse are on the rise but few employers have a clear policy in place to support survivors. Maria Strauss sets out some guidelines for responding to domestic abuse cases, especially as they are not always limited to the home.

Throughout the Covid pandemic, a sharp focus was placed on the soaring rates of domestic abuse, which impacts many women and men of working age and, likewise, impacts millions of children.

School leaders can find themselves involved in domestic abuse cases and, while the pathway for referring concerns about children is clear under the statutory processes for safeguarding, school leaders may be less sure, and on unfamiliar ground, when it comes to dealing with concerns about staff members; be they possible victims of domestic abuse or alleged perpetrators of domestic abuse.

Given that apparently millions of people are victims or perpetrators, schools should assume that these individuals may be amongst the workforce, and it is certainly our experience that there are more cases of this sort in schools. This becomes particularly risky where the member of staff lives on site.

In this context, there are a number of questions that bursars might ask. Could the school be liable in any way? Could our school community be at risk? What are our legal duties and responsibilities in this area? How do we protect our colleagues, pupils and other staff? How do we detect abusive people working in our school?

Legal landscape

Domestic abuse can take many forms. A new piece of legislation last year (Domestic Abuse Act 2021), now provides a statutory definition for the first time: "Behaviour of a person (A) towards another person (B) is ‘domestic abuse’ if:

A and B are each aged 16 or over and are personally connected to each other; and
The behaviour is abusive.

Behaviour is "abusive" if it consists of any of the following:

Physical or sexual abuse.
Violent or threatening behaviour.
Controlling or coercive behaviour.
Economic abuse.
Psychological, emotional or other abuse.

and it does not matter whether the behaviour consists of a single incident or a course of conduct."

Equally, in further developments, on 14 January 2021, the Business Minister published a report, Workplace support for victims of domestic abuse calling on all businesses "to look at what more your organisation can do to help survivors of domestic abuse".

The report found that few employers are aware of the signs of domestic abuse, and an even smaller number have a clear policy in place to support survivors. The letter draws parallels with workplace mental health where "it was once taboo to talk about mental health, but now most workplaces have well-established policies in place".

It is expected that given the rates of domestic violence and the societal impact, plus the Government’s report, that all employers will be expected to take steps in relation to domestic abuse as an employment law and HR issue. There may be even more onus on schools in this area given they are responsible for the safety of children. We may see further legislative developments giving domestic abuse victims workplace rights and protections. This has been done in Northern Ireland where recently, the Assembly passed legislation giving survivors of domestic abuse 10 days’ paid leave.

Domestic abuse strategy

In September 2020, largely in response to the rates of pandemic-related abuse, Farrer & Co launched an extensive guide for employers on domestic abuse giving guidance on developing a domestic abuse strategy and providing a model policy for employers which can be adapted for schools.

In the guide, we argue that domestic abuse is a workplace issue and not simply a "personal" matter because domestic abuse can lead to sickness absence, presenteeism, performance issues, workplace harassment claims (if the parties are co-workers or the abuser is contacting the victim constantly from / at work), risk of co-workers becoming involved especially where they feel they are "trying to do the right thing", and risks if the victim leaves the abuser and the school becomes the only reliable way of the abusive partner knowing where the victim is and gaining access that way.

We advocate that employers can:

Raise awareness of domestic abuse and the support that is available to staff (ie local specialist services and, where appropriate, in-house support recognising that schools should not try to take on the role of a specialist agency in a risky and complex area such as domestic abuse);
Train senior leaders and staff to recognise the signs of domestic abuse and how to handle disclosures;
Handle cases sensitively with the aim of reducing risk and supporting people;
Involve specialist agencies and seek advice.
Ensure that the workplace code of conduct and disciplinary policies are clear that all forms of abuse, including domestic abuse, are prohibited; and
Develop a policy that gives victims, staff and senior leaders a clear framework as to how to respond to domestic abuse cases.

It is expected that given the rates of domestic violence and the societal impact, plus the Government’s report, that all employers will be expected to take steps in relation to it as an employment law and HR issue.

Why domestic abuse is important for schools

Aside from the risks already identified above, there are other pertinent reasons why domestic abuse is a critical issue for schools:

Domestic abuse can have a damaging impact on an employee’s wellbeing resulting in lost output and reduced productivity. This may lead to performance management or even disciplinary proceedings, which are always time-consuming. Recognition of domestic abuse cases can lead to early help and the right interventions, which may help victims and save employers time and cost.
Domestic abuse can impact co-workers who may take on more work or cover for their colleague’s absences. Co-workers can even put themselves at risk.
Domestic abuse is not always limited to the home. There are instances where it can enter the workplace eg repeated calls or visits. This can particularly occur where the victim has left the relationship and the workplace becomes the only means of contacting the victim. Employers have duties to provide safe working environments for staff.
Employers should consider the consequences of employing someone in the workforce who is abusive: are they using the employer’s resources to harass a victim? Do they pose a risk to others? Is the abuser being investigated by the police? These issues are particularly risky in the school context given the remit of working with children and inherent responsibilities on all staff in relation to safeguarding children and spotting risks.
The pandemic has resulted in victims losing their support networks and services such as domestic abuse charities that are being stretched and this has a knock-on effect.

Support for victims

Schools can consider a range of ways of communicating available support to anyone experiencing domestic abuse. The helplines of domestic abuse charities can be publicised around the business. Employers could opt for a system of "nominated champions", ie trained staff members who can be points of contact.

Where an employer has a well-publicised policy, employees will see the support that can be offered, such as:

Linking an employee to a specialist organisation.
Time off to attend appointments related to the abuse or to look for new school places.
Short-term measures such as advances on pay or loans.
Flexible working; and
Counselling, as part of a longer-term fix.

Dealing with a perpetrator

Schools can also support staff who may be potential perpetrators of this abuse. Not all cases need to result in disciplinary sanctions. This does not mean condoning or ignoring their behaviour but assessing risk and assisting those employees who voluntarily seek help to change their behaviour. There are agencies that can help such people. In these cases, school leaders can consider a package of support including access to specialist services or time off for counselling having conducted a clear risk assessment. School leaders

How do we proceed having regard for everyone’s safety?
Does the accused worker present any type of risk to others?
Is the accused worker facing a police investigation or court proceedings?
What is the job being performed by the alleged perpetrator? Are they suitable to remain in that role?
Is it possible for the management to investigate the case?

Depending on a range of factors an employer can consider measures from supporting a perpetrator to change their behaviour, to conducting suitability assessments, supervision or even dismissal from their role in line with procedures and having regard to the wider context.

If you require further information about anything covered in this briefing, please contact Maria Strauss or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

Please note this content was originally published in the Summer 2022 edition of the Independent Schools’ Bursars Association (ISBA) termly magazine, “The Bursar’s Review”, and is reproduced with the kind permission of ISBA.