How to provide support to your employees who you suspect may have experienced sexual violence

Article

08 November, 2023

Laura McHugh

Partner

North West Sexual Violence Awareness week aims to raise awareness of sexual violence and the support services available to survivors in the region. The phrase 'sexual violence' is used as an umbrella term to encompass any kind of sexual activity or act (including online) that was unwanted, took place without consent or involved pressure, manipulation, intimidation, threats, deception or force. It is estimated that 3.8% of adults aged 16 to 74 years have experienced sexual assault (including attempts), 1 in 4 women have been raped or sexually assaulted as an adult (6.54 million women in total) and 1 in 18 men have been raped or sexually assaulted as an adult (1.34 million men in total). Yet only around 15% of those who experience sexual violence will go on to report this to the police.[1]

But how might this be an Employment Law issue?

Domestic Abuse Charities such as the Employers' Initiative on Domestic Abuse see Employment Lawyers as holding a critical role in ensuring employers are effectively supporting employees facing domestic abuse, as employers need to be aware of the legal issues which may arise in such situations and what their duties may be towards their employees (who could be either victims or perpetrators). This same can arguably be said for circumstances involving sexual violence.

Given the alarming figures referred to above it is very likely, almost guaranteed, that many employers will have employees who at some point during their working relationship will have had an act of sexual violence committed towards them. In addition, employers could employ an individual who is a perpetrator of sexual violence. In some limited cases employers could be faced with a situation whereby both the victim and perpetrator are colleagues and thus both employees of the organisation, which gives rise to a number of difficult and sensitive issues.

Below we set out a number of potential employment law issues which may arise in sexual violence situations, to give employers a brief glimpse into the areas they ought to be considering in further detail if and when scenarios arise;

Health and Safety -Employers have a duty of care towards their employees to provide a safe place of work as prescribed by the Health and Safety at Work Act 1974, which applies irrespective of whether an employee works from the home or in the office or other workspace. Employers need to think about risk assessments, the impact on managers and/or HR team who may have to deal with these kinds of issues as well as considering consultation with staff and external bodies.
Trust and Confidence - Employers must act in accordance with the term of trust and confidence implied into every contract of employment, as a failure to do so can give rise to claims for breach of contract and constructive unfair dismissal (if an employee has two years' continuous service). This duty to treat employees in a way that does not breach trust and confidence will underpin all scenarios where an employee is somehow involved in sexual violence, with employers needing to carefully consider, for example, how they support both potential survivors and perpetrators, how they handle confidential information, how they apply capability or conduct procedures and how to deal with potential harassment from a colleague
Performance considerations and adjustments - If an employee's performance has taken a sudden dip, it is important to check in with that employee to enquire if any external events are impacting their performance, rather than applying a knee-jerk reaction of putting them on a performance improvement plan. If an employee seems withdrawn or you notice a change in their behaviour this could potentially be a sign over time that the employee has been a victim of sexual violence or domestic abuse. Under the Equality Act 2010 in order to be classified as 'disabled' under the act, an employee must have an impairment which has a 'substantial, adverse and long-term effect' on their ability to carry out normal day-to-day activities. Substantial means more than minor or trivial and has lasted 12 months or is likely to last 12 months or more, or reoccur. If an employee has experienced sexual violence, they may be suffering with their mental health, for example with depression, anxiety, stress or PTSD. Therefore, reasonable adjustments may need to be put in place for these employees. Employers should have a vested interest in identifying any issues early and providing support to their employees should they note a decline in their employee's performance which could be as a result of their mental health stemming from being a victim of sexual violence.
Disciplinary issues - if an employee is known to be, or admits to being a perpetrator, an employer will need to take advice on instigating a disciplinary process. The relationship between the nature of the violence and the employee's role will need to be considered, as will any applicable policies, the ACAS Code of Practice and the wording of allegations of misconduct. The impact of any Police investigation, and cooperation with the Police are also important factors for employers to bear in mind.

Promoting a culture of zero tolerance of sexual violence in the workplace

According to a government consultation in July 2021 on sexual harassment in the workplace, 53% of those who responded to a set of online questions confirmed that they had experienced harassment at work (36% said they had not and 11% left the question blank or said they did not know)[1]. Employers can be vicariously liable for the actions of their employees should they go on to commit an act of sexual violence against another employee. The recent passing of the Worker Protection (Amendment of Equality Act 2010) Act 2023, which is due to come into effect on 25 October 2024, will introduce a new duty on employers to take reasonable steps to prevent sexual harassment of their employers. It will also give the tribunals power to increase compensation by up to 25% where an employer is found to breach the new duty to prevent sexual harassment. The new duty will sit alongside the employee's existing protections from sexual harassment in the Equality Act.

To ensure that a culture of zero tolerance to sexual violence and harassment is fostered amongst staff, as well as ensuring that in the event of any sexual harassment claim employers mitigate their liability as much as possible, showing they took all reasonable steps to prevent harassment, employers should:

Promote a culture of zero tolerance for harassment, including sexual harassment - This may include holding perpetrators accountable for their actions (whilst following a fair disciplinary process) and not brushing instances of sexual violence or harassment under the carpet, ensuring any victims feel comfortable in coming forward to share their complaints and to feel they are supported by the company. Further, employers must ensure that appropriate action has been taken to resolve the situation.
Ensure appropriate policies and procedures are in place - If not already in place, employers should consider creating a specific sexual harassment policy, however, this should be done in consultation with either trade unions or other employee representatives where there is no trade union. Ensure that you obtain legal advice before putting a sexual harassment policy in place.
Ensure appropriate risk assessments are in place -Employers should assess the risk in organisations where sexual harassment may be more likely to occur. The increase in hybrid working following lockdown, has meant that now workplace sexual harassment does not just occur in person, but also can occur online. Anonymous staff surveys could be used as an insightful tool to highlight potential risk areas, or a focus group of employee representatives can also be useful.
Train all staff on recognising the signs of sexual violence and harassment - Employers should ensure that everyone who works within the organisation is trained on recognising and understanding sexual violence and sexual harassment in the workplace, ideally within their first month of employment. Training should include dealing with inappropriate behaviour at work as well as equality, diversity and inclusion training. The training should be regular and updated regularly in line with any legal changes.
Monitor the treatment of discrimination and harassment complaints - Employers should ensure that they monitor the treatment of discrimination and harassment complaints and ensure they are properly investigated and resolved, whilst ensuring those who report instances of it are not victimised.

Signposting and providing support

If an employee discloses an instance of sexual violence or domestic abuse from either inside or outside of the workplace, signposting to external support organisations is essential. Whilst ensuring that line managers and HR are trained in providing support in these areas is important, it should be remembered that these are serious and complex issues, often involving criminal activity, and therefore advice and help from appropriate experts should be encouraged. This can include local charities and counselling. The situation around employers making disclosures to the police is complex (and we would always recommend seeking legal advice before considering any such disclosure, given the narrow circumstances in which they can lawfully be made) therefore signposting the employee in the right direction to do so themselves is key. Below is a non-exhaustive list of links to support agencies and sources of information;

Links

if you have any further questions on this topic, contact Employment Partner, Laura McHugh or Employment Solicitor Lauren Wood

For more information contact Laura McHugh in our Employment & HR department via email or phone on 0161 918 0008. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Employment & HR department here

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