The Domestic Violence – Victims Protection Act 2018 (Act) provides minimum protections for family violence victims in employment. Domestic violence is also referred to as “family violence”. The Act has three major aspects which cover employees who are either victims or who care for a child who is a victim. These are:
- The ability to take ten days paid leave (separate from annual, sick or bereavement leave);
- The ability to request short-term flexible working arrangements (for up to two months); and
- The right to not be treated adversely in their employment.
What does this mean as an employer?
For entitlement to leave, employees must have been employed for six months or meet the ‘hours worked’ test, similarly to other leave requirements. This leave does not accrue and an employer is not required to pay it if an employee is already receiving ACC weekly compensation.
A request for flexible working arrangements must be in writing, dated and state the name of applicant. It must also specify the type of variation, the period, how it will assist the employee to deal with family violence and 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
Employers can refuse flexible arrangement requests on one or more specific non-accommodation grounds. There are eight grounds, including the:
- “inability to reorganise work amount existing staff”;
- “detrimental impact on quality”; and
- “burden of additional costs”.
When considering using one of the non-accommodation grounds, think about what is “fair and reasonable”.
An employer can request “proof” of family violence, similarly to medical evidence for sick leave. However, family violence is more complex than your average sick leave claim.
If requested, an employee must show proof of family violence. For leave entitlements, an employer does not have to pay an employee until this proof is received, unless the employee has a “reasonable excuse”. For flexible arrangements, proof can be required within ten working days and can also be refused without it.
Unhelpfully, “proof” and “reasonable excuse” are not defined in the legislation.
The Ministry of Business, Innovation and Employment’s website, Employment New Zealand (ENZ) states that both the employer and employee should act in good faith regarding proof, which means “being open, honest, and quick to respond”. Good faith overarches the entire employment relationship.
For proof, ENZ offers examples such as: medical reports, court documents, or letters from support organisations.
However, obtaining proof is not always simple. Family violence is not always physical. It includes physical, sexual and psychological abuse and typically occurs behind closed doors.
In New Zealand, research indicates that over 67% of family violence events are not reported. Most victims do not report violence to formal services like Police, let alone their employers. Further, access to medical care, support services, or authorised persons are not immediately available to all.
When receiving a request, consider whether a less demanding form of evidence (like a letter of support from a friend) may be more appropriate. You may decide that proof is not required at all. Similarly, for a “reasonable excuse” to not provide proof, consider the specific circumstances. Is it impossible for this employee to see a doctor in ten days? Is this employee also caring for children? Is the violence financial or psychological? Have they told anyone else about this?
Privacy and shame are the most cited reasons for non-disclosure of abuse in the workplace. If you have an employee coming forward with a family violence situation, it is important to understand the courage this takes. Treat any family violence situations with the utmost confidentiality and sensitivity.
How can I prevent entitlement abuse by employees?
Employers may have concerns that without proof, employees could abuse entitlements. However, for family violence, employers receive protection from the additional requirements, non-accommodation grounds and the general productivity of workers.
Despite concerns of abuse of this leave, a study of workplaces has reported that less than 0.5% of employees asked for paid family violence leave in the two-year period from April 2019 to March 2021. On average, employees who accessed this leave used less than half of the ten days per year. As such, the likelihood of any abuse of the entitlements is highly unlikely.
What to do if you receive a family violence related request?
Employees with strong support systems are more likely to be productive at work. Leave and flexible arrangements provide the opportunity to remove themselves from family violence situations. ENZ states this is beneficial to employers, as “recruitment, training and absenteeism costs are high. These will reduce where employees are engaged, motivated, and committed”.
If you are an employer who receives a request for leave or flexible working arrangements, stop to consider whether proof is necessary. If it is necessary, consider whether a less intrusive form of proof (like a support letter) is acceptable, or whether the circumstances reasonably prevent an employee from providing proof. Supporting staff can be a step forward in helping to prevent further harm in a country where family violence is all too prevalent.
Our employment team are on hand to assist employers and employees alike when it comes to requests for family violence leave and flexible working arrangements.
Family violence: where to get help or refer others
- Women’s Refuge0800 733 843.
- ShineFree call 0508 744 633 between 9am and 11pm (for men and women).
- 1737, Need to talk?Free call or text 1737 to talk to a trained counsellor.
- Kidsline0800 54 37 54 for people up to 18 years old. Open 24/7.
- What’s Up0800 942 8787 (for 5 to 18-year-olds). Phone counselling available Monday-Friday, noon-11pm and weekends, 3pm-11pm. Online chat is available 3pm-10pm daily.
- Youthline0800 376 633, free text 234, email email@example.com, or find online chat and other support options here.
- If you or someone else is in immediate danger, call 111.
Sexual violence: where to get help or refer others
- Rape Crisis0800 88 33 00, click link for local helplines.
- Victim Support0800 842 846, text 4334, webchat nz or email firstname.lastname@example.org.
- The HarbourOnline support and information for people affected by sexual abuse.
- Women’s Refuge0800 733 843.
- Male Survivors AotearoaHelplines across NZ, click to find out more (males only).
Special thanks to Law Clerk Olivia Kemp for her assistance in writing this article.