A guide to Domestic Violence leave

With the relatively recent implementation of the Domestic Violence – Victims’ Protection Act 2018 (the Act) it could be assumed that most New Zealand businesses have acted to implement plans for domestic violence leave. Disappointingly however, this is not the case, with a recent survey revealing that less than one third (30 per cent) of small and medium national sized businesses have made changes to accommodate the Act – despite the law being enacted almost five months ago.[1] Out of the remaining surveyed businesses, nearly half (47 per cent) had made no changes, with the final 20 per cent not knowing whether changes had been made or preferring not to say.

Statistically speaking, New Zealand has some of the worst rates domestic violence rates in the OECD.[2] One in three women have experienced physical and/or sexual intimate partner violence in their lifetime. When psychological/emotional abuse is included, the statistic increases to just over one in two women.[3] Research shows that domestic violence affects every ethnicity in New Zealand, but that some groups are at higher risk than others. In particular, a survey of New Zealand women found that the lifetime prevalence of physical and/or sexual intimate partner violence was one in two for Māori women (58%), one in three for European/other women (34%) and one in three for Pacific women (32%).[4] However, the point is not to highlight the prevalence of domestic violence, but rather to emphasize the need for domestic violence leave to be taken seriously by employers.

The Act provides that employers must give employees affected by domestic violence up to 10 days’ domestic violence leave per year, once they have worked for an employer for six months. Among other stipulations, the Act also holds that employee’s must be allowed leave even if the abuse began before their employment. The Act also stipulates that employers must not treat any employees or potential job applicants, who they suspect might be victims of domestic violence, adversely. Abiding by the Act is not optional, and employers who choose to not follow domestic violence employment laws may be fined up to $20,000.

The new law makes it clear that domestic violence is a work place issue, but at the time is largely silent on certain components of the actual application of the law – such as how an employer should respond to a domestic violence leave request and the onus of asking for proof. At this stage, given the relatively new state of the Act, how a domestic violence leave request is to be dealt with in practice is ambiguous. It is envisioned that a request should be made in similar fashion to a sick leave request, though practical issues around leave time periods, use of leave entitlement and the accrual of leave may arise.

Employers may consider policies that enable employees the ability to talk to a colleague or manager who can make the leave application on their behalf, and without any requirement to put the reasons for leave in writing. For many victims of domestic violence, confiding in another is terrifying enough, let alone reliving the trauma. Employers should respond to domestic violence leave requests with urgency. In time clearer guidance will no doubt be provided for by the Courts, but in the meantime, employers should be proactive and practical in their treatment of employee’s requesting domestic violence leave.

Employers should be ensuring that those who are responsible for receiving requests for domestic violence leave, or are the person from whom others seek support, are well trained, and are also provided with support. This is important to ensure that they are not placed in an unreasonably stressful position, and that they have the necessary empathy and expertise to fulfil that role.

Another conceptual issue to be aware of is the requirement of proof. The Act holds that if an employee requests leave or asks for flexible working arrangements their employer may ask for proof of the said abuse. The law does not state what kind of proof an employer can accept, meaning that it is open for an employer to use their discretion. In addition to domestic violence leave, it may be difficult for an employer to assert that an employee suffering the effects of abuse is not genuinely unfit for work and entitled to sick leave.

Services helping victims of domestic violence abuse strongly advise employers not to ask for proof. Asking for proof in the face of an employee confiding that they are a victim of domestic abuse is not only extremely problematic but may be likened to an inference of disbelief. Victims of domestic violence are already in an extremely vulnerable situation and the practice of asking for proof has the potential to provide a chilling effect on victims who might otherwise seek help from their employer. Many victims of domestic violence do not have proof of their injuries as they have never involved the police, and in cases where they may have seen a medical professional, have chosen not to explain the true cause of their injuries. Similarly, proof of contact with a service to support those suffering domestic violence is problematic, given there are often limited records in order to limit the risk of these records being used against victims by their abusive partners, if discovered.

Domestic violence is a nationwide issue and not one that employers can ignore any longer. There are a number of resources available for workplaces to use, including Domestic Violence Free (DVFREE), a programme created by Shine, a national service helping victims of domestic abuse, to improve the workplace response to domestic violence. DVFREE offers a range of services, including domestic violence policy consultation, awareness raising activity and staff training. DVFREE also offers an online workplace module that is available for the public for free through Shine’s website https://www.2shine.org.nz/workplace-learning-module . Similarly, Shine is also a very helpful tool that provides a range of support and resources for those affected by domestic violence and/or those who wish to help https://www.2shine.org.nz/.

If you have any questions about domestic violence leave and the practical application of it in your workplace, be it from an employee or employer context please feel free to call us today.