Hina Belitz: the domestic abuse ‘safe leave’

Of the many employments law changes I have observed over a career as an employment lawyer (and novelist) spanning decades, proposals for new law on providing leave to victims of domestic abuse is singularly the one I could not have anticipated.

And I am not someone unfamiliar with the problems of domestic abuse; it was one of the themes of my first novel. I have also come across domestic abuse in my practice and the statistics around how prevalent it is always shock me.

Governments are usually reticent to create new statutory areas of paid ‘leave’ for employees, focused as they are on allowing employers to manage their own relationship with their workforce. However, in a trend towards protectionism seen in multiple employment law changes introduced by the UK’s current Labour government (which include, amongst others, reducing the qualifying period for unfair dismissal rights), a new bill has been introduced by Labour MP Alex McIntyre.

The bill, with the short name the ‘Domestic Abuse (Safe Leave) Bill’, would offer victims of domestic abuse 10 days of paid leave in order to ‘seek help’, ‘find the resources they need to escape their abuser, and to start the long process of healing’, according to the bill’s proposer.

So why is such protection necessary or relevant to British society?

Domestic Abuse in the UK

Most people, I am certain, are unaware of the extent of  the tragedy of domestic abuse. Data from the Office for National Statistics confirmed that over 2 million people were affected by such abuse in the UK in 2023. And these are the people who have confirmed they have suffered from it, and probably doesn’t account for those riddled with shame who keep their suffering hidden. Shockingly, domestic abuse ‘Refuge’, suggests that on average one woman is killed by an abusive partner or ex every five days in England and Wales.

This law is obviously part of an extremely commendable campaign to support those who are struggling with the horror of domestic abuse, and I wholeheartedly support the idea behind it and believe workplaces must do more to support abuse victims. It is also logical that individuals who are struggling at home will not be able to perform at work.

By extension, any plan that helps sufferers rebuild their home lives will by extension help their careers and wider UK productivity, which is currently in a dismal state. The Home Office’s conservative estimate of domestic abuse costing British society between £66 to 78 billion per year (a 2019 figure) provides stark evidence of how issues at home can have a wider effect on our economy.

On the ground, I have seen cases of employees (particularly women) suffering from domestic abuse in the workplace. My clients are mainly in the banking sector, but there will be people experiencing domestic abuse in all walks of life and in many different workplaces across the country.

Inherent Problems

Currently, supportive arrangements being put in place are entirely reliant on companies being proactive and understanding of the position sufferers are in. Adding a legal framework of support instead of relying on voluntary offerings by employers would appear to be a positive step, although it is worth noting employers do not necessarily need a legal obligation to put protections into place or to change their policies.

Companies that are flexible about issues facing their employees and understanding in the way they implement existing policies (e.g. emergency holidays or ‘compassionate’) leave are likely already properly supporting employees. Advertising to employees suffering from abuse that their employer is ready to support in any way possible would be a positive step employers could take to support victims, perhaps by publicising on internal intranets, setting up information or training days etc.

Having said that, my job as an employment lawyer is to support both employees and businesses in interpreting and applying the rigour of the law in their everyday lives.  I do therefore wonder how the nuances of this proposed law will work when more details become available.  There are some inherent problems. Employers are going to need to understand an employee’s particular circumstances in detail in order to grant this leave, and the shame such victims suffer may lead them to not wish to share such facts in the workplace.

There is also a possibility of abuse by opportunistic employees, which raises the question of how employers are meant to investigate and understand whether a particular situation qualifies for “safe leave” whilst still meeting their stringent obligations regarding an employee’s right to privacy under Article 8 of the Human Rights Act.

It may be that there needs to be some sort of referral system in place, whereby employees are eligible for this leave period if they have proof of having consulted an approved charitable organisation or the local police as confirmation of the existence of an abusive scenario. This may seem a cynical view to take, but it reflects my years of observing the possibility of unscrupulous employees and employers taking advantage of legal frameworks.

Sick Leave or Safe Leave?

A second issue concerns the crossover between sick leave and paid leave. It is an unfortunate fact that many of the individuals facing domestic abuse may also be suffering from long-term health ramifications of their treatment. This could include both physical and mental illnesses, many of which would likely meet the relatively simple test for disability under the Equality Act (a physical or mental impairment that has a substantial and long-term adverse effect on someone’s ability to carry out normal day to day activities).

If a person is ill, the proper processes involving disability or illness management (e.g. getting ‘signed off’ by a doctor and by extension becoming eligible for SSP) should be managed. Those whose suffering causes an ailment that qualifies as a disability may be entitled to reasonable adjustments in working practices, such as, for example, a reduced work week.

The compilers of this new Act will have to be sure that the difference between ‘safe’ leave and normal statutory ‘sick’ leave is well communicated and understood, in addition to clarifying how an illness may progress to be treated as a disability and what protections are available at that point. If something is better classified as sick leave with its significant statutory and case law treatment/protection (even if arising from domestic abuse roots), rather than this new type of leave, it will be important that this is understood.

Discrimination Risks

Looking at the weeds of the planned legislation in more detail, I would also query the figure of 10 days leave and how this was arrived at. Whilst 10 days does seem to be a good balance between allowing victims time to recuperate and ensuring some commercial sensitivity for businesses, investigations should ensure this time period would provide adequate support to those who are suffering.

Interaction with councils, who themselves have obligations once notified of a Domestic Abuse scenario, could help in this decision, as well as proper research being undertaken as to how long it takes the average domestic abuse victim to be fully rehabilitated away from their abuser. It should also, for example, be important for these 10 days leave not to have to be taken all at one particular point, but to be spread over a period. This will likely increase the usefulness of the leave, allowing employees to get the most out of it by choosing which days they wish to take it.

My final point revolves around a classically contentious area of employment law, namely discrimination. Whilst men are undoubtedly domestic abuse sufferers as well as women, it remains a clear fact that women are more often the abused in these scenarios, and men are more often the abusers.

Given this, employers will have to be sure that any policies they implement to introduce this leave into the workplace, are not open to allegations of discrimination. If men feel that their access to time off is not as accessible as that of women (perhaps they feel they are required to put forward more evidence regarding abuse or are less likely to be believed by their employer) then the area could be ripe for discrimination claims.

Final Thoughts

In essence, I understand the idea behind this leave and commend it. However, it will be important to ensure that the legislation is as clear as possible. This will be the case whether the law incorporates flexibility and discretion for the employer or is more prescriptive. Both of which may enable ‘safe leave’ policies to be properly implemented and managed by employers.

Similarly, the government will have to ensure that new requirements are properly communicated to both employers and employees. Employers must be aware of how to manage and integrate the leave into their internal policies without leaving themselves open to claims, whilst employees must understand ‘safe leave’ in addition to the many other potential myriad of rights in the workplace.

A final thought which should be voiced is that policy makers should perhaps be applying more careful time and funds to the eradication of such domestic violence in our modern society. Although I endorse the good intention behind the proposals, it would be a shame if such provisions to support sufferers of domestic violence are sending a subliminal message to the world that it is an accepted reality of modern life that is here to stay.

In my view, that would be a tragedy of an altogether different order.