New Zealand has appalling domestic violence statistics. One in three women say they have experienced physical or sexual abuse from a partner. Around half of all homicides and violent crimes in New Zealand are the result of family violence.
The Domestic Violence - Victims Protection Bill came into effect on 1 April 2019. The Bill has three important changes:
- Employees affected by domestic violence are entitled to take 10 days of paid domestic violence leave per year if they have worked for the employer for at least six months;
- Enacting a formal process whereby an employee may request a short-term variation of employment arrangements to assist the employee to deal with the effects of being a person affected by domestic violence; and
- Prohibiting employers from treating employees adversely simply because they are persons affected by domestic violence.
It’s important to note that these changes apply regardless of how long ago the domestic violence happened, even if it was before the person became your employee.
Domestic violence
The definition of domestic violence is broad. It includes violence against the employee and against a child who resides with the employee. The violence can include physical abuse, sexual abuse and psychological abuse. Examples of psychological abuse can include threats of abuse, damage to property, intimidation, ill-treatment of pets, and even financial abuse (eg. limiting access to financial resources).
Domestic Violence Leave
Employees affected by domestic violence are entitled to up to 10 days paid domestic violence leave per year, provided they have been employed for six months or more. The purpose of this entitlement is to allow employees time to deal with the effects of domestic violence, which may include recovery, relocating, organising childcare, attending legal proceedings, seeking professional support, and more.
Flexible working
Employees affected by domestic violence are entitled to request a short term variation to their working arrangements, such as their working hours, location and duties. An employer can refuse to vary the working arrangements on a number of grounds including that proof was not provided, the employer can’t re-organise workloads, inability to recruit additional staff, or the burden of additional costs, as a few.
Proof
Employers may require proof that an employee is a person affected by domestic violence, if they ask for domestic violence leave, or flexible working arrangements. If an employee fails to provide proof without a reasonable explanation then the requests may be withheld or declined.
The law does not define what constitutes proof, in the hope that employers will keep an open mind when responding to these requests. However, potential forms of proof could include police documents, a medical certificate, documents related to family court proceedings, or a document issued by a domestic violence support service.
Given the sensitive nature of this matter, we recommend employers treat requests on a case-by-case basis when deciding whether or not to request proof. Adopting a too-rigid approach may aggravate an already difficult situation and risk damaging the employment relationship.
Prohibited adverse treatment
Employers must not discriminate against or treat employees adversely simply because they are affected by domestic violence. Adverse treatment includes less favourable working conditions, or failing to promote an employee simply because they are affected by domestic violence.
Employers who fall foul of these provisions risk facing a personal grievance, or potentially a claim before the Human Rights Review Tribunal.
Privacy
Domestic violence is a very sensitive manner, and employers must be careful to ensure that any information about an employee’s exposure to domestic violence is kept confidential. Employers may wish to consider using neutral terms when referring to domestic violence leave, to avoid the risk of personal information being disclosed unnecessarily.
Domestic Violence Policy
We recommend employers consider implementing a domestic violence policy in light of these changes. The policy could set out the steps for applying for a temporary variation of an agreement and applying for leave. It would also set out the procedure the employer will follow when determining whether to grant domestic violence leave or a temporary variation. The policy could also set out types of proof of domestic violence employees may provide when applying for domestic violence leave or a short-term variation to be approved.
We are currently working with clients to assist them developing domestic violence policies. If you wish to discuss developing such a policy or if you have any questions around the law changes please feel free to contact us.
Cameron Fraser is a Solicitor in the Commercial and Employment Disputes Team at Norris Ward McKinnon. You can contact Cameron here.