16 September 2019 #Employment
Clarkslegal Managing Partner, Monica Atwal explains the steps organisations may need to take if a member of their staff becomes a victim.
Stalking is one of the most common forms of abuse, with around one in five women and nearly one in 10 men becoming a victim of stalking after the age of 16. The majority of stalking offences take place in a domestic abuse setting (between 2017-18, 73 per cent of stalking cases related to domestic abuse), but there remains a number of stalking offences that are perpetrated by strangers.
It is this ‘stranger stalking’ that the new Stalking Protection Act 2019 is designed to tackle, and as part of the government’s ongoing plan to address violence against women and girls. It came into force on 15 March 2019.
The Act’s main purpose is to introduce stalking protection orders (SPOs), which can be applied for by the police to prevent the stalker from continuing their abuse of the victim. The SPO can be put in place before any criminal prosecution takes place, allowing for the victims to be protected from an earlier stage.
The SPO can both order the stalker to refrain from taking certain action (such as visiting the victim’s place of work or making contact with them) and require them to take specific action (such as attend a mental health assessment).
The new Act also makes it a criminal offence to breach the SPO without a reasonable excuse, which carries a prison sentence of up to five years.
When drafting the Act and the scope of the SPOs, the government made it clear that ‘as far as practicable’, the conditions imposed on the person by the SPO should not interfere with the place or times of the person’s work.
Where the victim and the person subject to the SPO work for different employers, this should not present an issue. Where the employee is a victim, employers should ensure they have an appropriate stalking policy or procedure in place to offer support, as per their duty to ensure the health, safety and welfare of their employees.
There would need to be an assessment of risk and who should be notified and what details disclosed. For example, for an employee who has disclosed the need for protection from an individual who is subject to an SPO, an employer would be entitled to inform the security of their building that an individual should be prevented from entering the building, and can circulate a picture and name, but not disclose the SPO. Issues of privacy and confidentiality need to be considered.
There is no requirement under the Act for an employee to disclose to their employer that they are subject to a SPO. This would depend on the employer’s own policies or the employee’s actions. It would be difficult to justify that an employee has to disclose an SPO unless the employer has compelling justification.
Where it becomes a challenge for employers (and in particular, their HR teams), is where the victim works with the person subject to the SPO. In this situation, interference with the employee’s work is inevitable, and employers will need to take steps to ensure the employee does not breach the conditions of their SPO.
This may include measures such as amending shift rotas, so they do not work at the same time, or ensuring their work is arranged so the victim does not have to make contact with the stalker. There may need to be additional measures, such as random checks that someone with an SPO is where they are supposed to be.
Employers may have previously been unaware of the employee’s behaviour until they were informed of the SPO; in cases where the person has targeted a co-worker, it may be necessary for the employer to conduct their own investigation into the person’s conduct and follow their internal harassment policy. The stalker may be fairly dismissed for ‘some other substantial reason’ where working arrangements cannot be put in place to separate the victim and perpetrator, but there needs to be caution if there has been no criminal prosecution and the employer has a duty to satisfy themselves that there is evidence and grounds for any dismissal.
The SPO is a new measure designed to tackle stalking, and we are as yet unaware of how frequently such measures will be used. Employers should therefore review their internal practices to ensure that, should they encounter a SPO, they are able to respond effectively.
Article first appeared on People Management, 02/09/2019