Domestic violence and the workplace: how England and New Zealand compare

Posted: 10/09/2018

Legislation has been passed in New Zealand allowing those affected by domestic violence up to ten days per year additional paid annual leave. It reflects similar provisions already in force in parts of Canada and also in the Philippines.

This new law, which will come into effect from April 2019, defines “someone affected by domestic violence” as either a person against whom any other person is inflicting or has inflicted domestic violence, or a person living with a child against whom another person is inflicting or has inflicted domestic violence. If an employee falls within such categories, then they will be allowed to take additional annual leave (domestic violence leave) of up to 10 days in any 12 month period. This leave will be paid by the employer at their usual rate of pay. In addition, those who are affected by domestic violence will have a statutory right in New Zealand to request short term variation of their working arrangements to allow them to deal with the effects of domestic violence and provide express protections against “adverse treatment” by their employer over working conditions, dismissal, and so on. This protection covers not only those actually affected by domestic violence but people who an employer suspects, assumes, or believes to be affected.

The stated purpose of the new law is to support victims of domestic violence to stay in paid employment, regarded as “a critical step to limiting the effects of domestic violence”. The legislation also seeks to reduce recruitment and training costs for employers, and to maintain productivity.

Domestic violence in England – family law

Within this jurisdiction, as family lawyers we are used to advising clients who are victims of domestic violence and often need to do so on an emergency basis. The need to act quickly and effectively in such cases is often coupled with the need to maintain a degree of secrecy until plans are in place, so as to protect the party from further potential abuse.

The first step for family lawyers advising clients who have suffered domestic violence is to try to ensure their immediate safety. That may include involving the police or social services at an early stage. Careful consideration will also need to be given as to whether emergency court applications are required. The English court has wide-ranging powers to provide injunctive relief and to impose protective measures for those at risk from domestic abuse. This can include non-molestation orders and also occupation orders which prohibit the return to the former family home of the alleged abuser. The preparation for making such court applications is likely to involve a solicitor taking detailed instructions for drafting the application and supporting witness statements. In addition to court protection, on a practical basis, someone looking to free themselves from an abusive relationship may need to seek alternative accommodation, which may involve dealing with lettings agents, visiting properties and signing tenancy agreements as well as packing their belongings. Parents in such situations will need to give careful consideration to practical matters such as who will now do the school run, whether wraparound child care is required, what their proposals are as to contact arrangements with the other parent and whether a court application is needed for child arrangements or changes to schooling.

Such steps can take time and require careful planning, logistical support and co-ordination, particularly where a controlling or potentially violent partner may be suspicious of changes in behaviour and routine. In such circumstances, the ability for an employee to take additional leave during working hours or put in place short term flexible arrangements at work, as provided for in the New Zealand legislation, could be hugely beneficial. 

Domestic violence in England – employment law

Whilst in New Zealand companies will be obliged to allow 10 days paid leave per year (on top of annual leave) to people affected by domestic violence, in addition to permitting flexible working hours, there are no such provisions in the UK and no suggestion that the Government is considering this.

It may be difficult for the UK Government to determine that people affected by domestic violence should be given a greater level of support than those suffering in other ways, for example, as a result of sexual assault or bereavement.

Under current legislation, although there is no onus on employers to support people affected by domestic violence, employees can look for support in the following ways:

• Asking for anonymity at work
  Employers have a duty of care to their employees which means that they should take all steps which are reasonably possible to ensure their health, safety and wellbeing. If taking someone’s contact details off the company website, or stopping calls going through to their direct telephone number would keep them safe from harm, then it would be reasonable for an employer to agree to this. Alternatively, employees could seek to exercise individual rights under the General Data Protection Regulations.
  
  
• Making use of time off for dependants provisions
  Employees have the right to take a reasonable amount of unpaid time off work to deal with particular situations affecting their dependants, including providing assistance if a dependant is injured or assaulted, and dealing with unexpected disruption, termination or breakdown of arrangements for the care of a dependant. If a dependant is affected by domestic violence, employees could seek to rely on these provisions.
  
  
• Making use of sick leave or compassionate leave provisions
  Whilst both of these can only be used in specific circumstances, and they may be either paid or unpaid depending on company policy, these provisions allow the employee to take time off from work when needed. If leave cannot fall under either of these provisions (or the time off for dependants provisions), employees should speak with their managers. Good employers would be sympathetic and understanding in these circumstances.
  
  
• Requesting flexibility in working patterns
  Employers may be willing to provide some flexibility where the employee is suffering in their personal life. Many businesses are moving towards agile working these days and so working differing hours, or from another location, may be possible following an informal discussion with a manager. Alternatively, formal flexible working requests can be made where an employee wants to change their contractual working pattern in the long term. 

The intention behind the New Zealand legislation is a positive one. The regulations as drafted may however place a large burden on employers and could be open to exploitation. Some have voiced fears that they may dissuade employers from hiring people they suspect of being domestic violence victims. It will be interesting to see how they work in practice when the legislation comes into place in April.

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