Employer advice – Managing Domestic / Family Violence Leave

The Domestic Violence – Victims Protection Act 2018 (the Act) provides minimum protections for victims of Domestic / Family Violence in employment. This article sets out the features of the Act, including entitlements for employees affected by family / domestic violence, the processes employees and employers are required to follow and guidance for employers in receiving family / domestic violence disclosures and seeking proof.

Features of the Domestic Violence – Victims Protection Act

The Domestic Violence – Victims’ Protection Act 2018 provides legal protections in the workplace for people affected by family violence, by introducing amendments to the Employment Relations and Holidays Acts.  The Act gives employees affected by family violence the rights to:

• Paid domestic violence leave (up to 10 days leave per year, separate from annual, sick or bereavement leave)
• Request short term flexible working arrangements (lasting up to two months)
• Not be treated adversely in their employment (this will constitute discrimination).

Domestic violence (also referred to as family violence), is acknowledged to include other forms of violence, in addition to physical violence. For example, intimidation, harassment, damage to possessions, threats of abuse, financial or economic abuse, emotional or physiological abuse.

Someone is affected by domestic violence if they have experienced domestic violence themselves, or a child who has experienced domestic violence lives with them.

It does not matter when the domestic violence took place. The employee has these rights if the violence was experienced before they began working for their current employer, or, before these changes were introduced into law. 

An employee eligible for domestic violence leave will be paid at their ‘relevant daily pay’ or ‘average daily pay’ for each day of domestic violence leave they take on a day that they usually work. If an employee is already receiving weekly compensation via ACC, there is no requirement for an employer to pay. 

Who is eligible for Domestic violence leave?

An employee must have been employed for six months to be entitled to domestic violence leave, or, meet one of the following conditions:

• employment has continued for 6 months
• during those 6 months the employee has worked for at least an average of 10 hours a week. During this time, the employee must have worked either: 1 hour each week, or, 40 hours each month.

Domestic violence leave does not accrue. 

What is required in an application for a flexible working arrangement?

If an employee affected by domestic violence asks for short-term flexible working arrangements, to help deal with the effects of the domestic violence, the employee’s request must:

• Be in writing, dated and state the name of employee applying.
• State they are asking for short term flexible working, as set out in Part 6AB of the Employment Relations Act.
• Give details of the change sought to their normal working arrangements, how long they want the changes to last, when the changes would start and finish, how it will assist the employee to deal with family violence, and what the changes the employer may need to make to accommodate the employee.

Common flexible working arrangements include reduced or increased hours, flexible hours, working remotely or job sharing.

Responding to a request for short term flexible working arrangements.

Employers must reply to a request within 10 working days, and if refusing, must state this and explain the reasons why. 

An employer can refuse a request only if they did not get proof asked for within 10 days of getting the request, or, that they cannot reasonably change working arrangements, because of one of the following ‘non-accommodation’ grounds:

• not being able to reorganise work among other workers
• not being able to recruit more workers
• a detrimental impact on quality
• a detrimental impact on performance
• not enough work expected at the times the employee wants to work
• changes to the workplace structure that are already planned
• burden of additional costs
• detrimental effect on the ability to meet customer demand

As with any actions made by an employer, when considering an application the employer must meet its good faith obligations and consider what is fair and reasonable in all the circumstances.

Guidance for employers requesting proof of Domestic/Family Violence

Employers are legally entitled to request “proof” of family violence. 

If requested, this must be provided by an employee. An employer does not have to pay for domestic violence leave entitlements until proof is received, unless the employee has a reasonable excuse.  

However, the legislation does not set out what amounts to “proof” or a “reasonable excuse” not to provide proof. Examples of proof may include medical reports, court documents, or communication from organisations providing support for the Domestic violence. However, given abuse is not necessarily physical, much abuse is not formally reported, and access to support may not be immediately available, employers need to be careful in considering an employee’s inability to provide “proof”. There may be friends of family who are able to assist the employee with a statement confirming their circumstances, i.e. a less intrusive form of proof.

Privacy and shame are common reasons for employees not disclosing domestic/family violence to their employers. Accordingly, it is critical that employers treat the disclosure of any Domestic/Family violence with confidentiality and sensitivity. Those who may be in receipt of a disclosure should be provided training, and workplaces should provide clear guidance to employees about who disclosures can be made to and how.

Where to get/refer help for Family violence

Women’s Refuge https://womensrefuge.org.nz/contact/find-your-local-refuge/ Phone 0800 733 843.

Shine https://www.2shine.org.nz/get-help/helpline Free phone 0508 744 633 9am – 11pm (for men and women).

1737, https://www.1737.org.nz/  Need to talk? Free call or text 1737 to talk to a trained counsellor.

Kidsline http://www.kidsline.org.nz/ Phone 24/7 for people up to 18 years old 0800 54 37 54

What’s Up http://www.whatsup.co.nz/ Phone counselling available for 5 – 18 year olds: 0800 942 8787 Monday-Friday, midday - 11pm and weekends, 3pm – 11pm. Online chat available 3pm – 10pm daily.

Youthline www.youthline.co.nz  Phone 0800 376 633, free text 234, email [email protected], online chat and other support options at https://www.youthline.co.nz/counselling.html

If you or someone else is in immediate danger, call 111.

Where to get/refer help for Sexual violence

Rape Crisis http://www.rapecrisisnz.org.nz/ Phone 0800 88 33 00

Victim Support http://www.victimsupport.org.nz/get-help/support-after-sexual-violence-or-family-violence/ Phone 0800 842 846, text 4334, webchat http://www.safetotalk.nz/ or email [email protected].

The Harbour http://www.theharbour.org.nz/ Online support and information for people affected by sexual abuse.

Women’s Refuge https://womensrefuge.org.nz/contact/find-your-local-refuge/  Phone 0800 733 843.

Male Survivors Aotearoa https://malesurvivor.nz/contact/ (men only).

For advice on managing employment relationships, including managing Domestic/Family Violence situations, please don’t hesitate to contact our specialist employment lawyers at DTI Lawyers. You can contact us on 07 282 0174, or [email protected]