United Kingdom: Employers - Shining a light on domestic abuse

In brief

An estimated 2.4 million adults in the UK aged 16 to 74 experienced domestic abuse in the year ending March 2019. This has been compounded in 2020 with rising levels of unemployment brought on by COVID-19, furlough, economic uncertainty and the impact of increased home working, self-isolation and lock down. Indeed, the UN has estimated that instances of domestic abuse are up by 20% this year and has described this as a ‘shadow pandemic’. It has been suggested that one in three women and one in six men will experience domestic abuse in their lifetime, and with disproportionate impact on certain groups such as disabled women and members of the LGBT+ community, employers are starting to consider the issue through a diversity and inclusion lens. In this article, we will discuss the potential workplace and legal impact of domestic abuse, as well as the role employers can play in providing a safe and supportive working environment for all staff.

Why it matters: the business case 

Given the extent of the issue, domestic abuse is likely to affect every workforce to some degree. Domestic abuse is pervasive and can happen to anyone in any sector, no matter their personal circumstances or seniority. Some key statistics on the business case include:

  • the estimated annual cost of domestic abuse to employers in the EU is €228 billion due to decreased productivity, increased absence, lost wages and sick pay;
  • approximately 75% of people who experience domestic abuse are targeted by their abuser at their workplace; and
  • research by the TUC found that more than 40% of domestic abuse survivors were prevented from getting to work by their abuser – providing a clear link between abuse and absence.  

Thanks to recent updated CIPD and Equality and Human Rights Commission (EHRC) guidance and a government review on how to support employees experiencing domestic abuse, employers are learning that the issue is a business matter rather than something that goes on ‘behind closed doors’. Yet only a fraction of UK employers currently have a specific policy or guidelines available to address the subject.

Warning signs of domestic abuse 

Domestic abuse can take many forms. It is important to recognise that it does not always involve violence and can involve other types of controlling behaviour whether that is psychological; physical; sexual; financial; or emotional. Very few employees tell their employers about domestic abuse, but by educating HR and management about the issues, encouraging compassion and implementing policies to reinforce a supportive culture, employers can build employees’ trust. 

These are some things to train managers to look out for, including when an employee is working remotely:

  • damaged work equipment or other resources;
  • restricted access to a phone or the internet at home;
  • frequent interruptions;
  • refusal by a partner to carry out childcare or an employee's worry about leaving children at home;
  • withdrawal, increased anxiety, anger, fear, isolation or distraction, or another change to an employee's normal character;
  • increased absence, lateness, or leaving work early;
  • tiredness or lack of sleep;
  • changes to the way someone dresses or the usual make-up they wear; or
  • changes to quality of work performance or loss of confidence for unexplained reasons despite a strong track record.

Although domestic abuse can affect anyone, for some there is a heightened risk. For example, women are more likely to be affected by domestic abuse, and disabled women are almost twice as likely as non-disabled women to be affected. Instances of abuse in the LGBT+ community disproportionately affect transgender and bisexual people. Some ethnic minority groups may also be more at risk and there may be cultural reasons why an employee is less likely to make a disclosure of abuse. Each case will be different and employers should avoid making stereotypical assumptions.

Sources of advice

There have been a number of useful guides on the topic over recent years. In 2018, the UK government issued a toolkit for employers, in conjunction with Business in the Community (BITC) and Public Health England (PHE). 

In June 2020, business minister Paul Scully announced a government review to look at options to improve the workplace for employees experiencing domestic abuse. Submissions were required by 9 September 2020 and the review is expected to report back by the end of 2020.

In August 2020, the government issued guidance on domestic abuse during the pandemic.

Most recently, on 29 September 2020, the CIPD and EHRC published Managing and supporting employees experiencing domestic abuse: a guide for employers, an updated version of guidance issued in 2013.  

Legal issues

Employees suffering from domestic abuse may have underlying or consequential mental or physical health issues which could amount to a disability protected by the Equality Act 2010. If an employee is disabled, an employer should make any adjustments that would be reasonable to alleviate substantial disadvantages that the employee may be exposed to in the workplace, such as to hours, duties, absence management or performance measures. What is reasonable will depend on the specific situation and the employer’s size and resources.

Because domestic abuse often affects attendance, confidence and performance, employers are advised to be attentive to underlying causes of patterns of behaviour. Managers should be trained to spot potential signs of abuse when addressing performance or absence issues, and to understand that employees may be reluctant to disclose a problem, even when facing disciplinary action. 

All employers are under a duty to treat employees in a way that is consistent with a relationship of mutual trust and confidence. An unreasonable or unsupportive employer might face a claim of constructive dismissal if an employee with at least two years’ service resigns in response to an alleged breach of trust and confidence.

When an employee may be the perpetrator of abuse 

Creating and maintaining a culture in which employees feel able to disclose domestic abuse also requires an employer to deal promptly and fairly with individuals who are suspected, or have admitted to be, perpetrators of abuse. Although typically the abuse may be entirely unconnected to work, there are circumstances in which employers may be able to dismiss for conduct that occurs outside work. 

The CIPD and EHRC guidance recommends that employers make it clear that misconduct inside and outside work is viewed extremely seriously and can lead to disciplinary action and dismissal. To lessen the risk of unfair dismissal claims, the employer’s policy should state that conduct outside work unrelated to colleagues, such as violence, harassment and domestic abuse, may lead to disciplinary action. Employers should follow the Acas Code of Practice and give consideration to factors such as:

  • where the abuse takes place and any impact on colleagues;
  • any bearing on the employer’s reputation;
  • whether the conduct affects the employer’s trust and confidence in the employee to carry out their role;
  • whether the employer’s IT equipment or one of its mobile devices has been used to perpetrate abuse; and
  • any related criminal proceedings. 

Of course, every case should be assessed on its facts and a fair procedure should be followed to comply with the law.

In certain circumstances, an employer may also have an obligation to report an employee’s conduct to a regulator such as the Financial Conduct Authority.

The global outlook

The UK Government is not alone in seeking to highlight domestic abuse and its impact on the workplace. Here are some examples of approaches around the world:

  • New Zealand has enacted law that provides for 10 days' paid domestic violence leave, the right to ask for short-term flexible working, and the right not to be treated adversely in the workplace because an employee may have experienced domestic violence;
  • California has enacted an amendment to the Labor Code to provide victims of violent crimes and families of homicide victims time to recover without fear of job loss and expanded unpaid leave. The amendment also requires employers to make reasonable accommodations for the safety of the victim while at work, where they have requested it; 
  • The French Labour Code gives an employee the right to abstain from work if she is in serious and pending danger; and
  • In Italy, paid leave of up to 3 months is available for female employees that have been subjected to gender abuse. This leave uses the same framework for pay as maternity leave.

Although there is no standard global approach on matters such as time off, a global policy can draw on core principles to develop practical steps of universal application.

Top tips

These are some practical steps that employers can take to support those experiencing domestic abuse:

  • Maintain confidentiality - Employers should normally maintain the employee’s confidentiality. However, in certain circumstances, for example when children are involved or the abuser poses a risk to other colleagues, an employer may have to breach confidentiality because the risk of harm is too great. It should seek specialist advice before taking such action.
  • Develop a policy - Issuing guidance for managers and employees will provide clarity as well as a framework for supporting affected employees. It is best practice to consult with external support groups, recognised trade unions and internal employee networks when developing policies and campaigns. 
  • Conduct a risk assessment - Under the Health and Safety at Work Act 1974, employers must provide a safe place of work for all of their employees. They should therefore make sure their workplace risk assessment (including for working from home) identifies domestic abuse risks and preventative and protective measures. When completing this risk assessment, they may wish to consult external experts in domestic abuse services and support. 
  • Consider crisis measures - This could involve agreeing a word or hand gesture which would signal that an employee is in an emergency situation. Employers may wish to set out protocols for when to escalate an issue, when to contact the police, and what steps to take if an abuser visits or calls the workplace. 
  • Consider paid leave or financial support - At present, employees in the UK need to take sick leave, holiday or perhaps unpaid emergency dependants’ leave. Employers may consider allowing a number of days of paid emergency leave each year which does not count towards any absence management criteria, or salary advances could also be considered. 
  • Provide training - Managers and HR should be trained to spot warning signs and to have supportive and non-judgemental conversations with employees. This should include asking open questions that may prompt a disclosure, such as commenting that the individual does not seem to be their usual self and asking if everything is OK. 
  • Make reasonable adjustments - Whether or not an employee is disabled, employers can consider adjustments to workload, working hours or work location or offer increased flexibility and support. They could also allow an employee experiencing abuse to return to the workplace during COVID-19 restrictions. 
  • Revisit the organisation’s disciplinary policy - Making it clear that perpetrators of domestic abuse (whether committed inside or outside the workplace) could be subject to disciplinary action, including dismissal, will send a clear message about the organisation’s culture. To give an employer flexibility to dismiss in advance of a criminal trial, it is advisable to state that evidence of committing a criminal offence (rather than requiring a conviction) will be sufficient to dismiss for gross misconduct. 
  • Signpost support - Employers should provide information about external support groups and charities including in relation to legal support, housing support, support with childcare, support in dealing with financial abuse and specialist counselling.
Contact Information

Copyright © 2023 Baker & McKenzie. All rights reserved. Ownership: This documentation and content (Content) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms). The Content is protected under international copyright conventions. Use of this Content does not of itself create a contractual relationship, nor any attorney/client relationship, between Baker McKenzie and any person. Non-reliance and exclusion: All Content is for informational purposes only and may not reflect the most current legal and regulatory developments. All summaries of the laws, regulations and practice are subject to change. The Content is not offered as legal or professional advice for any specific matter. It is not intended to be a substitute for reference to (and compliance with) the detailed provisions of applicable laws, rules, regulations or forms. Legal advice should always be sought before taking any action or refraining from taking any action based on any Content. Baker McKenzie and the editors and the contributing authors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The Content may contain links to external websites and external websites may link to the Content. Baker McKenzie is not responsible for the content or operation of any such external sites and disclaims all liability, howsoever occurring, in respect of the content or operation of any such external websites. Attorney Advertising: This Content may qualify as “Attorney Advertising” requiring notice in some jurisdictions. To the extent that this Content may qualify as Attorney Advertising, PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. Reproduction: Reproduction of reasonable portions of the Content is permitted provided that (i) such reproductions are made available free of charge and for non-commercial purposes, (ii) such reproductions are properly attributed to Baker McKenzie, (iii) the portion of the Content being reproduced is not altered or made available in a manner that modifies the Content or presents the Content being reproduced in a false light and (iv) notice is made to the disclaimers included on the Content. The permission to re-copy does not allow for incorporation of any substantial portion of the Content in any work or publication, whether in hard copy, electronic or any other form or for commercial purposes.