September 2018
The Domestic Violence – Victims’ Protection Bill has recently been assented to.
It will become law from 1 April 2019, and makes three key changes that employers and employees should know about. These are:
a new form of discrimination under the Human Rights Act 1993: adverse treatment in employment of people affected by domestic violence;
a new personal grievance which employees may raise if they believe they have been adversely treated by their employer because their employer believes they may be affected by domestic violence.
Here are some practical considerations for dealing with a request for leave, or a flexible working arrangement so you can start preparing for 1 April 2019 (when the changes come into force).
Employment agreements often refer to the different leave entitlements. While including specific reference to domestic violence leave in agreements is not required, employers should consider whether their employment agreements need updating to make reference to this for consistency and clarity.
Alternatively, domestic violence leave might be documented elsewhere such as in the employer’s leave policies. Some employers may already offer domestic violence leave as part of their employee wellbeing policies. These policies should be reviewed to ensure that they match or are better than the new law.
Similar to sick leave, an employee becomes entitled to domestic violence leave after six months’ continuous employment. Employees can then request up to 10 days’ leave for each year, and must notify their employer as early as possible (ideally before the employee is due to start work) before taking leave.
An employee becomes entitled to 10 days every year, but cannot ‘roll over’ any unused entitlement into the next year.
A request can be made no matter how long ago the domestic violence event occurred, or regardless of whether the employee was employed by the employer at that time. However, an employer may request proof of domestic violence.
A number of practical questions will likely arise. Such as:
Domestic violence leave will likely be treated similar to sick leave, meaning that entitlement can be used throughout the year for the same incident. Given that the Bill is clear that leave can be taken no matter how long ago the domestic violence occurred, it is likely that an employee will be able to also use subsequent entitlements in later years. However these are questions that will, in time, be clarified by the courts.
Employers and employees should be encouraged to be proactive and communicative about agreeing leave arrangements, taking into account special circumstances of each request. Useful matters to discuss will include how much leave is initially requested, whether the employee anticipates taking more leave in the future, and whether there is any other support or assistance that the employer can give.
Another feature of the law change is to provide specific ability to employees affected by domestic violence to request a short-term variation to their working arrangements. This is similar to flexible working requests which are already available to employees, although there are tighter deadlines on employers to respond, and arrangements are limited to not longer than two months.
Employee safety at work should also be considered if an employer is made aware of a domestic violence incident. While not of itself a workplace event, domestic violence may nevertheless impact on employee safety at work (a workplace hazard includes a person’s behaviour including the effects from mental fatigue, or traumatic shock), and safety duties under the Health and Safety at Work Act are relevant.
It will be prudent to consider more generally what (if any) support arrangements are practicable to ensure the employee’s safety at work. This may include considering leave (whether annual, sick, domestic violence, or unpaid), or flexible work arrangements generally (even if these have not been requested), if these are reasonably practicable.
Finally, considerations about confidentiality and privacy are important. Domestic violence is extremely sensitive. Employers should be mindful of how to manage a domestic violence related request, how leave and flexible arrangements are managed, and who knows what. Again, developing a policy dealing with domestic violence related requests will provide a useful framework as to how such requests will be managed.
A group of NZ’s largest employers have worked together with the Human Rights Commission to produce model policies and resources about domestic violence. These can be found on the website www.businessworkingtoendfamilyviolence.co.nz . Organisations such as Shine and DVfree (which is a division of Shine for workplaces) also offer support services and training, and can assist with implementing policies for domestic violence.
Some employers will be concerned that these changes will be unaffordable. The Warehouse (which has voluntarily implemented paid domestic violence leave) has found the cost was there anyway because often the victims will take time off sick repeatedly, and were actually unproductive at work.
Not every employee will use this leave, and for the ones that do, excessive leave can be monitored and controlled. One benefit to employers will be that by providing leave and flexible arrangements to help employees resolve issues at home, employees will be back to work and full productivity sooner.