Domestic violence leave: What're your legal responsibilities to employees?

The Federal government looks set to introduce 10 days’ paid domestic violence leave into legislation for all employees. Predicted to come into force by the end of the year, it’s a move supported by the Fair Work Commission and welcomed by unions and advocates.

A workplace can offer a haven away from an abuser for a person experiencing Domestic and Family Violence (DFV). But knowing how to understand, recognise and respond to DFV is still an issue that many employers struggle with.

“Employers know they have a duty of care to their employees but are worried about their role in doing/saying the right thing and knowing how far they should go in offering support, especially for smaller businesses with no EAP or with minimal HR support,” says Emma Hayward, Director of The Consulting Space.

Hayward encourages organisations to have a DFV policy in place that includes: 

1. Definition of domestic violence and the purpose of the policy. 
2. Has a clear description of the entitlement available and how to access it (do you use the same process as to apply for other types of leave?). 
3. Who to approach for advice on the entitlement, (preferably a couple of avenues – an HR practitioner or direct manager trained to deal with enquiries). 
4. How enquiries will be dealt with and guidance for those addressing enquiries, including appropriate response and behaviour.
5. Employee safety – what to do if an employee feels unsafe onsite or is concerned for the safety of other staff
6. Referral information (such as to 1800RESPECT, the national sexual assault, domestic violence counselling service or EAP)
7. Confidentiality of information

“It is important not to push people too hard, because you’re dealing with a level of fear and potential danger that is well beyond the ‘norm’. Policies should be about the support that can be provided, rather than an overly prescriptive approach,” says Hayward.

Susan Price, solicitor with Kingsford Legal Centre at UNSW, says confidentiality around communication processes is essential.

“If employees see that those who do disclose are treated adversely, there will be no faith in the employer’s policy no matter how good it looks on paper.”

Practical measures can be put in place as part of an overall safety plan which should be done in conjunction with the employee.

“These might include setting up separate accounts for pay to go into, changing any contact details for the employee, or providing time off if the employee needs it. But it has to be driven by what the employee needs, not what the employer assumes is going to help,” says Price.

Trained for the task

A DFV policy on its own is not enough without education and training for the people who are likely to receive disclosures, such as HR and people managers.

“If an employee finally gets up the courage to disclose to someone at work and gets a response like ‘Why don’t you just leave him’ or ‘What were you doing to provoke that?’ or some other kind of negative reaction, it will be completely counterproductive and is likely to shut down the employee completely,” says Price.

Employers should train their HR teams in understanding the basics around domestic violence and the referral pathways and professional organisations best equipped to deal with DV. Education also has a more general benefit in breaking down taboos and explaining to everyone why DFV is a workplace issue.

“The idea is not to make everyone a DFV expert, but to raise awareness,” explains Price.

Setting boundaries

It is not the role of the HR practitioner to take responsibility for the employee extricating themselves from the DV situation, says Hayward.

“This will present a challenge to some HR practitioners, because becoming ‘involved’ at any level can engender a sense of responsibility. It will be especially difficult for those who have experienced DV in some way themselves, either personally or with a close friend/family member,” says Hayward.

Unfortunately, the nature of the DV cycle means that often people don’t leave, or at least don’t leave the first time, so this process may need to be repeated.

“HR practitioners will need to be able to create this safe, supportive space without judgment, in the knowledge that the DV dynamic is highly complex, often shrouded in shame and secrecy,” says Hayward.

Minimal disclosure

It should also be recognised that some employees will want to access this leave with minimum disclosure of their situation to the employer.

“Victims of domestic violence are perpetually in fear, often have had their self-esteem destroyed and may be unable or unwilling to engage. In these cases, it may occur that an employee submits a request for DFV leave and provides required evidence, but does not wish to discuss their situation with the employer,” says Hayward.

Where this is the case, in exercising duty of care, Hayward advises that it would be reasonable for the employer (either manager or HR practitioner) to undertake a short, confidential conversation with the employee to check on their safety, the safety of their colleagues in the workplace and to offer any further assistance or facilitate a referral. This should then be confidentially file-noted.