On 10th March 2022 a Proposition was lodged in the States to introduce a statutory offence of domestic abuse. The proposed Domestic Abuse (Jersey) Law (the Draft Law) is due to be debated by the States of Jersey on 25th April 2022.
The Purpose of the Draft Law
Many aspects of domestic abuse can already amount to criminal offences under the Island’s existing statutory and customary laws. An assault, for example, whether sexual or otherwise, is an offence and can already be prosecuted. However, there are gaps in the protection that the law currently provides. The Draft Law aims to deal with the subtler forms of abuse, such as coercive and controlling behaviour.
The Draft Law also recognises that domestic abuse does not occur solely in the context of those involved in an intimate relationship. The Draft Law seeks to provide the Police with the power to impose a ‘domestic abuse protection notice’, where there are reasonable grounds to believe that a person has committed a domestic abuse offence. Under the terms of the Draft Law, the Magistrate’s Court would also be able to issue a ‘domestic abuse protection order’, where the Magistrate’s Court considers, on the balance of probabilities (i.e. to the civil, not the criminal, standard of proof) that a person has committed a domestic abuse offence.
The Draft Law grapples with some pretty difficult definitions. The definitions are pretty broad as they stand and may well come in for some scrutiny when the Draft Law is debated. As currently drafted, these include:
“Abusive” – This means “behaviour” that is physically or sexually abusive, violent or threatening, or amounts to economic or psychological abuse.
“Behaviour” – This includes doing or in some way communicating something; or intentionally failing to do or in some way communicate something.
“Coercive or controlling” – This means “behaviour” reasonably likely to make the victim dependent on or subordinate to accused, isolate the victim from friends, family, or other sources of social interaction or support; control, regulate or monitor the victim’s day to day activities; or restrict the victim’s freedom of action.
“Personally Connected” – This means two persons aged 16 or over where:
They are, or have been, married, in a civil partnership or in an intimate personal relationship; or
They have agreed to marry or enter a civil partnership; or
They are or have been parents of the same child, or share or have shared parental responsibility for a child; or
They are relatives (whether by blood, adoption, marriage or civil partnership); or
Where one of them provides care to the other.
“Domestic Abuse” – “Behaviour” amounts to “domestic abuse” where two people aged 16 or over are “personally connected” and the “behaviour” of one to the other is “abusive” and that “behaviour” either causes, or is reasonably likely to cause, physical, financial or psychological harm to the other person.
A person who intentionally or recklessly engages in behaviour that is domestic abuse commits an offence. It is a defence to that offence if their behaviour was reasonable in the circumstances.
Similarly, a person who intentionally or recklessly behaves in a controlling or coercive manner towards another also commits an offence. In the Draft Law there is no equivalent defence of reasonableness to this offence.
Potential Impact on Employers
It is important to note that the Draft Law does not create any offences for aiding or abetting domestic abuse. The Draft Law does not, on its face, impose any additional obligations on employers.
However, employers are already under certain legal duties to their employees which may well be broad enough to impose obligations in respect of certain issues of domestic abuse. These include:
Health and Safety at Work (Jersey) Law 1989. Employers have a duty to take reasonable care of the health and safety of their employees. This obligation applies irrespective of whether the employee works from the employer’s premises or from their home. As such, where an employee works from home, and if there is a known risk of domestic abuse at an employee’s home, there is arguably an obligation on an employer to carry a risk assessment and to identify measures to minimise any risks identified.
Discrimination (Jersey) Law 2013. If a victim of domestic abuse subsequently suffers physical or mental injuries which have a substantial and longer term adverse effect on their ability to carry out normal day to day activities, they would satisfy the definition of ‘disability’ under this piece of legislation. If an employee is disabled, an employer should seek to make reasonable adjustments to remove substantial disadvantages to that employee.
Mutual trust and confidence. An employer has an implied duty not to treat employees in a way that is calculated or likely to breach the implied term of mutual trust and confidence. An employee could potentially argue that a failure by their employer to support them after having been subjected to domestic abuse could represent a breach of this implied duty.
Role of an Employer
One of the most pernicious aspects of domestic abuse is that it is so often hidden. Plainly an employer cannot be expected to take action in respect of something which the employer is unaware of. Nevertheless, it is important to be aware of the potential employment law issues which might arise and to be aware of the need to foster an environment in which those who do suffer domestic abuse can feel safe and secure in disclosing that to their employer.
It might be sensible for an employer to have a domestic abuse policy in place which details how an employee can report domestic abuse to their employer, in confidence, and what employees can expect from their employer if they disclose that they are or another employee is suffering (or potentially suffering) from domestic abuse. This should be reviewed against other relevant policies to ensure that they are consistent.
For advice or further information, please contact us.