Domestic violence leave acknowledges harm

10 Sep 18

Column written by Dunedin Partner John Farrow, published in the business section of the Otago Daily Times on Monday 3 September.

The employment relationship is probably the second most significant relationship we experience. The employer employs the entire person, not just their working self. Inevitably the employee brings aspects of their home life to work with them. The two simply can’t be divorced.

The Domestic Violence Victims’ Protection Act 2018 recognises this. It is due to come into effect on 1 April 2019. The Act acknowledges the harm experienced and the influence that the workplace has in helping support victims to escape domestic violence. Secure employment enables victims’ economic stability and helps them to successfully rebuild their lives. For employers, the Act aims to reduce recruitment and training costs and maintain workplace productivity.

The Act creates a new category of leave in addition to annual, sick and bereavement leave. An employee who is affected by domestic violence can take up to ten days paid domestic violence leave per year. This is a minimum entitlement and employers are welcome to provide for greater entitlements if they wish.

An employee must have completed six months continuous employment before becoming entitled to domestic violence leave. Every subsequent 12 month period, the employee has an entitlement to ten days paid domestic violence leave however, unlike sick leave, domestic violence leave does not accrue and cannot be carried forward.

The notification requirements are similar to sick leave. If an employee is already taking annual leave, they can convert that leave into domestic violence leave. Similarly, bereavement or sick leave can also be taken as domestic violence leave.

It will be difficult for an employer to ascertain the authenticity of any claim for domestic violence leave. A person is affected by domestic violence if they are:

  •  a person against whom any other person inflicts, or has inflicted, domestic violence; and/or
  •  a person with whom there ordinarily or periodically resides a child against whom any other person inflicts, or has inflicted, domestic violence.

‘Domestic Violence’ has the meaning given to it in Section 3 of the Domestic Violence Act 1995. It includes verbal abuse, monetary pressure and other actions which are difficult to define.

There is no time limit on when an employee affected by domestic violence can subsequently request domestic violence leave. The domestic violence may, in some cases, have occurred before the employee started work.

An employer may require proof that their employee is a person affected by domestic violence, but can only require proof if they advise the employee as early as possible and no later than three working days after the request is received. In the absence of reasonable proof, there is no requirement to pay for domestic violence leave.

An employee affected by domestic violence is also entitled to seek flexible working arrangements for a short-term period of no more than two months.

An employer can require proof of the need for flexible working arrangements. The employer can refuse a request if proof is not provided. The employer can also refuse a request if it cannot reasonably accommodate the flexible arrangement due to factors such as an inability to recruit additional staff or reorganise work among existing staff.

An employee will also have grounds for a personal grievance or a claim under the Human Rights Act if they are treated adversely in their employment on the grounds that the employee is, or is suspected or assumed or believed to be, a person affected by domestic violence.

Most victims of domestic violence feel immense shame and often blame themselves. It remains to be seen whether victims will be brave enough to make requests for domestic violence leave. The employers’ culture and attitude will play a significant part. Employers who accommodate requests for domestic violence leave with sensitivity are likely over time to receive an increasing number of requests. While both males and females are subject to domestic violence, employers with a predominantly female workforce are likely to receive more requests for domestic violence leave.

Parliament clearly believes that providing such leave is in society’s best interests. There is also a strong argument that it is in each employer’s best interests to provide for the safety and wellbeing of its staff. Proper rest and rehabilitation is crucial to this. It is also crucial to workplace culture and, ultimately to productivity.