The Domestic Violence Victims’ Protection Act 2018 (“the Act”), was given Royal Assent on 30 July 2018 and comes into force on 1 April 2019. The Act makes amendments to the Employment Relations Act 2000, Holidays Act 2003 and Human Rights Act 1993.
The aim of the Act is to enhance legal protection in the workplace for people affected by Domestic Violence by supporting victims to continue in paid employment.
The Act provides the following:
- Domestic Violence Leave: employees affected by domestic violence (who meet the 6-month criteria) are entitled to up to 10 days’ paid domestic violence leave a year to deal with the effects of domestic violence (i.e. counselling, medical appointments). Domestic violence leave cannot be carried forward or accumulated. There is a notification requirement and the employer may require proof that the employee is affected by domestic violence. If the employee fails, without reasonable excuse, to provide such proof, the employer is not required to pay for any domestic violence leave until the employee complies with that requirement.
- The type of proof required is not set out in the Act. However, we anticipate that such proof could include a medical certificate, a report from a health professional including a phycologist or counsellor, a police report, criminal proceeding, court orders, and/or a report from a domestic violence support organisation and so on.
- Flexible Working: employees affected by domestic violence may request short term flexible working arrangements (up to two months or shorter), including changes to their hours of work, location and duties. An employer:
- must deal with such a request as soon as possible but no later than 10 working days after receipt; and
- is only permitted to refuse such a request where proof that the employee is affected by domestic violence is required and not produced, or the request cannot be accommodated reasonably on certain non-accommodation grounds.
If an employer requires proof, the employer must inform the employee of this as early as possible, and within three working days of the request.
- Personal Grievance for Adverse Treatment: The Act explicitly prohibits an employee being treated adversely in their employment on the grounds that they are, or are suspected to be, a person affected by domestic violence. Employees may take a personal grievance or a claim under the Human Rights Act 1993 if they have been treated adversely in employment on these grounds.
It is important for employers to understand that domestic violence is not only limited to direct physical violence but includes sexual abuse and psychological abuse (i.e. harassment, intimidation, financial or economic abuse). It also includes the effects on children seeing or hearing domestic violence. Additionally, the entitlement to domestic violence leave and the right to make a flexible working request will apply to a person affected by domestic violence regardless of how long ago the domestic violence occurred, and even if the domestic violence occurred before the person became an employee.
Employers should have an action plan in place, including:
- Ensuring employees feel comfortable to disclose when they are victims of domestic violence;
- Policies on how to address and respond to disclosures of domestic violence, requests for domestic violence leave and flexible working;
- Amending your employment agreements, leave application forms and so on; and
- Educating your employees and providing training.
It is essential that employers understand their increased obligations under the Act. Appropriate systems and procedures are essential for dealing with these issues in a sensitive, discrete and fair manner.
If in doubt, it is important that you seek advice.
Author: Aishleen Sluiters, Managing Barrister