From 1 April 2019, employees who are affected by domestic violence will have new entitlements and rights. They can take up to 10 days' paid leave each year, can request a variation to their working arrangements, and can raise a personal grievance, or unlawful discrimination claim, if their employer treats them adversely because they are affected by domestic violence.
These new entitlements and rights come from the Domestic Violence - Victims' Protection Act 2018 (Act).
Domestic violence is broadly defined and means violence towards the employee by a person with whom they are, or have been, in a domestic relationship. It includes:
- physical abuse;
- sexual abuse; and
- psychological abuse, such as intimidation, harassment, damage to property, threats of abuse, and financial or economic abuse.
Being "affected by domestic violence" includes residing with a child against whom someone inflicts, or has inflicted, domestic violence.
Domestic Violence Leave
The Act introduces a new category of leave for employees affected by domestic violence.
Eligible employees can take up to 10 days' paid domestic violence leave in each 12 month period. Leave can be taken regardless of how long ago the domestic violence occurred, and even if it predated employment.
To qualify for paid domestic violence leave, employees must meet the same requirements as for sick and bereavement leave - they must have been employed for a continuous period of 6 months (some employees may qualify even if their employment is not continuous).
Employers can require proof of domestic violence, but the Act does not specify what constitutes proof.
Right to Request Short Term Variation to Working Arrangements
The Act also gives employees, affected by domestic violence, a right to request a short-term (up to 2 month) variation to their working arrangements to assist them to deal with the effects of the domestic violence.
Working arrangements include hours of work, days of work, place of work, the employee's duties and the extent of the contact details that the employee must provide to the employer.
Requests for a change in working arrangements are similar to the existing framework for requesting flexible working arrangements. The request must be in writing and specify particular information. A request can only be declined if:
- the employer required proof of the domestic violence and the employee failed to provide proof; or
- the request cannot "be accommodated reasonably" on 1 or more of the non-accommodation grounds set out in the Act.
The non-accommodation grounds are:
- inability to reorganise work among existing staff;
- inability to recruit additional staff;
- detrimental impact on quality;
- detrimental impact on performance;
- insufficiency of work during the periods the employee proposes to work;
- planned structural changes;
- burden of additional costs; and
- detrimental effect on ability to meet customer demand.
Employers are required to provide information about appropriate specialist domestic violence support services to employees who make a request in these circumstances.
New Personal Grievance and Discrimination Provisions
The Act creates a new type of personal grievance, which applies where an employee is treated adversely by their employer because the employee was affected by domestic violence (or the employer suspected, assumed or believed they were).
It also makes being affected by domestic violence a ground of unlawful discrimination under the Human Rights Act 1993.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.