The New Domestic Violence Act - What Employers Need to Know
About the Author:
TANIA WAIKATO
Associate at Cooney Lees Morgan
Based in Tauranga, Tania specialises in employment law, health & safety and civil litigation. She is an internationally published academic writer and enjoys providing pragmatic, solutions-focused advice to her clients.
The Domestic Violence - Victims’ Protection Act 2018 (“Act”) came into effect on 1 April 2019 and has many employment law commentators saying that it is the start of a new era in employment law. The Act amends the Employment Relations Act 2000, the Holidays Act 2003 and the Human Rights Act 1993 with the two main changes from an employer’s perspective being that:
An employee affected by domestic violence will be entitled to claim up to 10 days paid domestic violence leave in each 12 month period; and
An employee affected by domestic violence may request a short-term (two months or less) variation to their employment arrangements for the purposes of dealing with the effects of being subject to domestic violence.
The qualification period for the new domestic violence leave is the same as for sick leave which provides that an employee may qualify after either six months' current continuous employment with one employer, or where the employee has worked at least an average of 10 hours per week over the past six months and no less than one hour in each week in that period, or at least 40 hours in each month. The entitlement to domestic violence leave does not carry forward from year to year as sick leave does, but the ten day leave entitlement remains in force for the full 12 months from when leave is first approved and taken.
The employer is entitled to request proof of domestic violence to support the employee's application for domestic violence leave, but the Act is silent as to what might constitute proof.
This is an area that may prove to be difficult for employers and employees, especially in light of the fact that the Act allows a person affected by domestic violence to take domestic violence leave, “regardless of how long ago the domestic violence occurred, and even if the domestic violence occurred before the person became an employee”. It could be very difficult for an employer to obtain proof from an employee of historic domestic violence, and even more difficult if the abuse occurred before they became an employee.
The second new entitlement is the ability for an employee affected by domestic violence to request a short-term variation to their employment arrangements. For example an employee may wish to work from home for a period, or to take an extended leave of absence if there are fears around a violent partner potentially finding the employee at the workplace.
There are a number of procedural steps that need to be followed when an employee makes a request. If the employer refuses the request it must state in writing the grounds for refusing and explain the reasons for those grounds. The grounds for refusal to accommodate the employee can include the inability to reorganise work among other staff, recruit additional staff, the impact on quality and performance, the insufficiency of work during the periods the employee proposes to work and the additional burden of costs.
The grounds for discrimination under the Human Rights Act will also be amended to include domestic violence as a ground of unlawful discrimination. This means that employers cannot discriminate against an employee in their employment if they are a victim of domestic violence.
Tania Waikato
Associate
Cooney Lees Morgan
07 578 2099
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