In 2019 it was formally recognised that an employee affected by family violence (either current or historical) can be significantly impacted in every aspect of their life, not least the satisfactory performance of their employment obligations. Prior to 2019, the employee was reliant upon the employer being ‘reasonable enough’ to allow some undefined flexibility while the employee made any necessary adjustments in respect of themselves, or for a child who is affected by family violence. Those adjustments may include being in alternative accommodation, involvement in the Court system, attending counselling or medical appointments, the loss of reliable transport to get to work, or mental health issues. Parliament has ensured that the employer/employee relationship adjusts to accommodate the far-reaching effects of family violence.
Sections 69 AB – 69 ABK of the Employment Relations Act 2000 prescribes a mandatory ‘support’ system within the employment relationship to assist an affected employee for up to a period of two months. It does not apply to all employees, only to employees who have been worked for the employer for at least six months and for at least an average of 10 hours a week (other limitations also apply). Those employees eligible for this support can expect a minimum of 10 days paid leave and can ask the employer for up to 2 months of flexible working arrangements.
These provisions have now been in force for over two years and judging by the lack of case law in the Employment Relations Authority (or Employment Court) this may suggest that either most employers are now becoming familiar with their new obligations or that many employees are not aware of the provisions or simply feel unable to disclose that they are being affected by family violence.
The effects of family violence on an employment relationship could be subtle, numerous and perplexing to an employer. The employee may, uncharacteristically, begin arriving late to work or need to leave early. They may seem distracted or not focusing on their tasks. He/she could be withdrawing from social interactions with other employees or it may result in new tensions between employees. The employee may appear agitated or pre-occupied on their cell phone during work time. Or they may not come to work at all.
If the employee does not disclose the issue to the employer the employer may have no way of identifying the issue of family violence. It takes trust and confidence to disclose this very private and personal information. Add to this that many employees may not know themselves how to disclose, what benefits this may afford them or who to disclose to. There may be language barriers or cultural factors. The employee may fear some ‘repercussions’ from disclosing . Family violence still carries a certain ‘social stigma’, and many employees affected by family violence may feel embarrassed or ashamed to bring the matter to the employer’s attention. This is certainly compounded when the alleged perpetrator may either work at the same workplace, have attended work functions or has friendships with other colleagues at the workplace.
Does the employer need to ask if ‘family violence’ is an issue?
In some instances, the employer may be aware of ‘issues at home’ but find it easier to take the approach that they “don’t want to know”, or that “the employee will tell me if it’s something I need to know”. The law does not state that the employer has an obligation to actively question the employee if they are affected by family violence if the employee is behaving erratically or out of character. Nor would it be reasonable to expect an affected employee to voluntarily disclose the issue of family violence in a formal disciplinary investigation process.
The obligation of good faith may provide some assistance to the employer who is unsure how to approach the issue. Both parties to an employment agreement have a duty ‘to be active and constructive in maintaining a productive employment relationship’, and this includes an obligation to be ‘responsive and communicative’. This provides some support to the employer to make some gentle enquiries with the employee without fear of breaching their privacy.
We suggest that if an employer becomes aware that an employee may be experiencing affects of ‘family violence’ the employer should firstly approach the issue in a confidential and informal manner with the employee to clarify if it is an issue and to advise the employee of how they may be able to support them. Supporting an employee may be more than just advising the employee about their respective statutory obligations it may also include allowing the employee to use sick leave, unpaid leave or the provision of any support or counselling services.
The employer and employee will also both benefit from having a clear Family Violence policy in place to assist. This policy may address:
- Privacy issues of matters discussed or disclosed.
- Who is covered by the policy.
- A nominated person for the employee to contact.
- How that nominated person could assist the employee (ie. Arranging an interpreter, explanation of the statutory provisions in easy language, receiving in private documents from the employee, liaising with the employee if other information is needed, preparing a written family violence request).
- A summary of the statutory provisions and how it affects the employee.
- What the employer must do in response to a family violence request.
- What proof may be required of the family violence.
- How employees not eligible for Section 69AB – 69ABK may still receive support.
- Other support services provided by the employer.
- A list of external agencies that may be able to provide further support to the employee.
If you have any questions about your obligations under the Employment Relations Act or would like to know more about drafting a Family Violence policy for your workplace, please contact us.