Stalking Protection Orders – the Law and how it affects Employers

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The perpetrators of stalking can now be banned from approaching and/or contacting their victims under police powers that came into force on 20 January 2020. Under the Stalking Protection Act 2019, the police have power to apply to the magistrates for a Stalking Protection Order (SPO).

The Order can also be used to force stalkers to seek professional help. Orders will usually last for at least two years, though they can be for a fixed term or until a further order is made. Either party (the person subject to the order or the police) can apply to the Magistrates’ Court for an order varying, renewing or discharging an order.

A breach will be a criminal offence punishable by up to five years in prison.

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 to 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 human resource teams), is where the victim works with the person subject to the SPO. In this situation, interference with the employee’s work is almost 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 under the “some other substantial reason” ground where working arrangements cannot be put in place to separate the victim and stalker, 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. 

Employers should therefore review their internal practices (as they should do regularly anyway) to ensure that, should they encounter a SPO, they are able to respond effectively.

For further information about your duty as an employer whether in relation to this or any other matters, why not contact Alexander JLO’s employment lawyers and see what we can do for you.

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 31st March 2020 and is correct at the time of publication. With decades of experience in almost all areas of law, Peter is happy to assist with any legal issue that you have. His profile on the independent Review Solicitor website can be found Here

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