It is chilling situation to be stalked. Anxiety levels can reach heights never imagined. It is a fear which never goes away, and can often continue in the virtual world via email and social media. If not addressed it can create crippling anxiety – often with victims left feeling helpless and powerless. In more severe cases, victims of stalking may be subjected to physical violence by their stalkers.
HR teams will be well versed in harassment law deriving from the civil and criminal aspects of the Protection from Harassment Act 1997 (as amended), the high level of compensation awarded in case law, and the provisions regarding harassment on the grounds of a protected characteristic under the Equality Act 2010. But have you heard of the Stalking Protection Act 2019, which extends to England and Wales, that received Royal Assent in March 2019?
The new law started as a private members bill, and soon garnered cross party support. In the second reading of the Stalking Protection Bill in the House of Lords, Baroness Bertin and Baroness Royall outlined the following, frankly terrifying, statistics:
- One in five women and nearly one in 10 men will be the victims of stalking behaviour in their adult lifetime.
- It is estimated that 94% of femicide cases are preceded by some level of stalking in the year leading up to the murder.
- Well over 90% of stalking victims have known their stalker in some context, albeit sometimes tenuously.
- It takes about 100 episodes of stalking for victims to come forward and, when they do, too often they are not taken seriously, so the stalking becomes murder in slow motion.
- 55 women who had reported an abusive partner, ex-partner or stalker were killed in the three years between 2015 and 2017.
- At least 10 women a week commit suicide because of abuse, and some of them are victims of stalking who have reported many incidents to the police.
- In the 2017-18 crime survey for England and Wales, there were more than 10,000 recorded offences of stalking, almost double the previous number of 5,313.
- The national stalking helpline [details at the end of this article] has responded to almost 14,000 calls since it was established in 2010.
The Parliamentary debate acknowledged that there was a defined period where a complaint of stalking has been made, but the evidence was still being gathered and it is at that point that the person who has raised concerns is particularly vulnerable. The new regime seeks to close that gap, and provide a mechanism to provide more protection. The main purpose of the Stalking Protection Bill is to give police an additional tool to protect the victims of this crime and deter perpetrators at the earliest opportunity.
The new civil stalking protection order regime
So how is stalking defined in the new law? The short answer is that it isn’t; although Clause 1(4)(b) of the Act states that a risk associated with stalking “may arise from acts which the defendant knows or ought to know are unwelcome to the other person if, in other circumstances, the acts would appear harmless in themselves”.
The new regime includes “stalking protection orders”. These are civil orders available on application by a chief officer of police to the magistrate’s court. They are bespoke orders, which can be positive (requirements) or negative (prohibitions) in nature, and they are designed to give that much-needed protection – especially where there is the risk of the stalking escalating - by allowing police and the courts to step in at an earlier stage. If the civil order is breached it would be a criminal offence - with a maximum sentence of up to 5 years in prison.
A magistrates’ court may make a stalking protection order if satisfied that:
(a) the defendant has carried out acts associated with stalking,
(b) the defendant poses a risk associated with stalking to another person, and
(c) the proposed order is necessary to protect another person from such a risk.
A magistrates’ court may include a prohibition or requirement in a stalking protection order only (our emphasis) if satisfied that the prohibition or requirement is necessary to protect the other person from a risk associated with stalking.
Prohibitions or requirements must, so far as practicable, be such as to avoid (our emphasis):
(a) conflict with the defendant’s religious beliefs, and
(b) interference with any times at which the defendant normally works or attends an educational establishment.
An order can prohibit a defendant from:
- entering certain locations or defined areas where the victim resides or frequently visits (such as the victim’s workplace);
- contacting the victim by any means, including via telephone, post, email, SMS text message or social media; or
- physically approaching the victim, at all or within a specified distance.
An order can also require the defendant to do something, such as:
- attending a perpetrator intervention programme;
- attending a mental health assessment; or
- participating in a restorative justice process.
How would you react?
In an HR context, the new regime could create unique challenges, as it provides a legal mechanism through which police can identify a need to protect victims and apply to the court for an order, even if the perpetrator has not been prosecuted.
So, you could have a situation where a member of your staff is subject to a civil order, which you, as the employer, may not know about. Employees do not strictly have an obligation to inform you of such things (unless set out in their contracts of employment/or a HR policy), although you could argue that failure to do so breaches the implied term of mutual trust and confidence between employer and employee. There will be added complications for those working in regulated sectors such as financial services or the legal profession. In such cases, the regulator may well have to be informed [either by the employee directly or by the company/firm once they are on notice of it], which could impact the individual’s status with the regulator, and have a knock-on effect on the ability to carry out their role.
So, how would you react if you discovered that you had a bona fide stalker in the office? What support would you provide to the person being stalked if they were an employee? What action would you take against an employee who was subject to a civil stalking order?
How would you act if the order was in place on one of your employees for 2 years?
Aside from cases where the contract of employment clearly states employment is conditional on the employee holding a particular regulatory status and where such status is impacted by any civil order having been made, employers will have to tread carefully in handling these cases. As the orders are to be used specifically in the case where the criminal threshold has not been met for a prosecution, there is likely to be an evidentiary problem.
If the restrictions on the order are such that the employee can no longer carry out his/her duties, the dismissal could potentially be justified on the grounds of “some other substantial reason”. This has been successfully argued in the case of a custodial sentence, but there is no case law as of yet regarding whether this reasoning could extend to civil orders.
Employers could also seek to justify any dismissal on the grounds of “conduct” – certainly if the facts leading up to the order being made have taken place in a work context (for example, the victim is a co-worker or a client, or the perpetrator was using work equipment within working time to carry out the stalking).
Whichever reason employers seek to rely on, they will need to ensure they acted reasonably in treating that reason as sufficient for dismissal, and follow the processes set out in their handbook or policies.
Baroness Briton specifically asked for the inclusion of additional provisions in the Act regarding stalking in the workplace, seeking reassurance from the Minister that it would not be possible to trump stalking activity by saying, “I have my right to go to my place of work”.
In the House of Commons, Chris Philp, gave the example of one of his constituents:
“Most defendants in these cases are male. This defendant, Lina Tantash, aged 44, is a resident of Croydon and she was jailed yesterday for four years for stalking offences that had carried on over a period of 10 years. The conviction applied to three of those years. She had persistently harassed and stalked the victim by turning up unexpectedly at his place of work—even turning up at his office Christmas party—by making thousands of phone calls and by offering money to his colleagues to provide his personal mobile phone number. Eventually, the victim had to leave the country”.
Comments from the employment law team at ebl miller rosenfalck (London)
There is the scope for HR teams to act in a positive way to educate their teams about the new law, and to encourage any member of staff to seek help and support if they are being stalked, or concerned that one of their co-workers might be.
In this context, companies should consider how they could adapt. Could you ask your staff to sign a non-stalking charter, to set out acceptable behaviour? Or provide training your staff as to what may be considered to be stalking - perhaps in conjunction with training on harassment or bullying?