Domestic Violence Leave to be Effective from 27 November
From 27 November 2023, Ireland will be one of the first countries in the EU to introduce paid domestic violence leave for employees.
The Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman recently announced that domestic violence leave will come into effect on 27 November 2023.
Domestic violence leave will be provided under a new section 13AA in the Parental Leave Acts 1998 to 2023 (“Parental Leave Acts”), inserted by the Work Life Balance and Miscellaneous Provisions Act 2023.
Employees will be entitled to up to five days paid leave in a 12-month period and there is no mandatory service requirement to avail of the leave. Earlier in the year the Government announced that employees availing of domestic violence leave will be entitled to full pay (gov.ie).
We are awaiting the publication of Regulations to bring the leave into effect and to set out how the full rate of pay should be calculated. A detailed overview of the statutory framework for domestic violence leave is set out in our previous briefing (here). The introduction by Ireland as one of the first countries in the EU of paid domestic violence leave is an important step in reducing the stigma that surrounds the issue and offering support to impacted employees. As outlined by the charity Women’s Aid on its website, “[p]articipation in the workplace serves to improve affected employees’ financial situation, promote physical safety, increase self-esteem and social connectedness, and more.”
In this briefing we consider the supports put in place by the Government for employers implementing domestic violence leave and set out our recommended next steps.
While there is no obligation under the Parental Leave Acts to have a domestic violence leave policy in place, the Government engaged Women’s Aid to prepare and offer supports and services for employers to implement the leave.
A new website www.DVatWork.ie has been launched and contains the following supports:
- Policy Template: Workplace Supports for Employees Affected by Domestic Violence
- Guidance Note: Workplace Supports for Employees Affected by Domestic Violence
Employers can sign up through the website for free information sessions. In addition, an advice service for employers will be offered for the next six months.
The Policy Template and Guidance Note are likely to be invaluable resources for employers. While the statutory obligations that we outlined in our previous briefing will come into effect on 27 November 2023, employers are advised to take the necessary time to consider the contents of the Policy Template in conjunction with the Guidance Note, to ensure that the requisite people within their organisation receive appropriate training and to put in place a policy that will suitably reflect the organisation’s fuller workplace response.
We take a closer look below at the key provisions of the Policy Template and Guidance Note below.
Domestic Violence Leave Policy Template
The template covers areas such as eligibility, disclosures, confidentiality, available supports and awareness. It can be adapted by employers to reflect matters specific to their organisation including size, industry and workplace setting. It is important for employers to note that the template contains statutory obligations in relation to the leave along with recommendations for other supports in responding to employees experiencing domestic violence leave.
An employee will not be obliged to provide any supporting information to an employer when requesting domestic violence leave. However, the template encourages employees who may benefit from employer support to raise the issue with an appropriate person.
In this regard, the template introduces the concept of a “designated person” within the organisation who will have a primary role in responding to disclosures of domestic violence and abuse. This person will have received appropriate training on responding to disclosures, the provisions of the policy, and their limits in providing support. A section in the template sets out different avenues of disclosure, while emphasising that there is no obligation on an employee to disclose that they are currently or have in the past been subjected to domestic violence.
The template contains a key section relating to confidentiality, including what information an employer may retain on an employee’s personnel file and the limits of confidentiality.
Given the highly sensitive nature of any employee information relating to domestic violence leave, it will be important that all employees, whether they are disclosing information to a colleague or are the recipient of information, are clear about the protections in place and their obligations to maintain its confidentiality.
The template lists suggested supports to employees that employers can consider providing, over and above the statutory entitlement to paid domestic violence leave. These include additional special leave, financial support, and employee protections.
The Guidance Note should be read in conjunction with the Policy Template to assist organisations with implementation of domestic violence leave and tailoring of the policy for each workplace.
The Guidance Note covers the following topics in detail: eligibility, how to access the provisions of the employer’s policy, disclosures, confidentiality, supports, conduct in the workplace and awareness raising and training.
It clearly indicates the mandatory obligations under the Parental Leave Acts and what matters are discretionary for employer consideration when it comes to implementing a Domestic Violence Leave Policy.
Advance notice and supporting evidence?
Under the Parental Leave Acts, an employee is obliged to give notice of domestic violence leave as soon as reasonably practicable after taking it.
As the Guidance Note points out, this facilitates situations where the leave is urgently required in an urgent and unpredictable situation, not capable of advance notice. However, the Guidance Note advises that “it is reasonable for employers to request affected employees to provide advance notice wherever possible.”
It also notes that while the Parental Leave Acts do not require evidence to support an application of domestic violence leave, there “may be very limited, exceptional circumstances in which an employer may consider it appropriate to request supporting documentation, however, in the context of this Note, it is not considered within the spirit of the provisions of the Act to request supporting documentation of any kind.”
Domestic violence leave needs to be treated with the utmost sensitivity and understanding, and in that regard, employers are advised to comply with the provisions of section 13AA of the Parental Leave Acts (when implemented), and, significantly, to avoid imposing obligations on affected employees to provide advance notice or supporting evidence. Such information may of course be provided by employees on a voluntary basis, and the Template Policy and Guidance Note provide excellent information on handling employee disclosures.
Working from home
The Guidance Note makes interesting points in relation to working from home. Working from home can increase the intensity of the violence and abuse which a victim-survivor is subjected to.
Where employees are expected to work from home all or some of the time, the Guidance Note recommends that an option to work from the work site is available to them when needed. In organisations where this is not possible, providing access to an alternative safe work location should be considered. However, an employer should not make assumptions about an employee’s needs and, following a disclosure, it is recommended that they are consulted with on their safety regarding their work setting if they work from home.
Employers should consider this advice when reviewing and updating any remote or hybrid working strategies to reflect this need for flexibility and the importance of employee safety in such situations.
One of the key issues for employers when administrating domestic violence leave and providing supports to employees experiencing domestic violence, relates to ensuring the confidentiality of their sensitive personal information. The Guidance Note advises that an employer:
- Aims to limit the number of individuals with access to the relevant confidential information; and
- Adopts its existing practices for managing sensitive employee information to address domestic violence leave.
In addition, all records must be securely stored, kept confidential, and retained only as necessary. Colleagues who receive disclosures, whether initially or as part of risk management, must maintain confidentiality. Where an unauthorised disclosure takes place, it may be appropriate to invoke the disciplinary procedures.
Employers need to be mindful of just how sensitive information relating to domestic violence leave is and specifically to consider how they will record domestic violence leave on their internal systems and on employee payslips.
Employees availing of the leave will be entitled to full pay. Nonetheless, it is crucial that employers carefully consider how it is recorded on payslips to avoid unnecessarily disclosing that the employee has availed of the leave.
The Guidance Note advises that records should also be accessible to a minimal number of staff who are in a position of high trust. Further useful detail is provided in relation to the limits on confidentiality, when there will be a requirement for an employer or colleague to disclose information and how to approach that with an impacted employee.
The Guidance Note acknowledges that different organisations will have varying capacity to offer additional supports based on their size, resources and industry.
Employers should take time to consider the suggestions in the Guidance Note and determine what additional supports, if any, they will be able to provide to employees. In considering what additional supports an organisation may provide, it will be important to ensure that it has the relevant resources including, a sufficient number of appropriately trained individuals within the organisation to implement these supports.
Workplace Safety Plan
The Guidance Note suggests that an employer can support an employee who is experiencing domestic violence by including a safety and wellbeing planning process as part of its response i.e., a workplace safety plan. The objective of a workplace safety plan is to determine what the employer can do to help the employee be safe at work. A detailed workplace safety plan guide is at Appendix A of the Guidance Note.
Awareness Raising and Training
Employees should be informed of their rights to domestic violence leave and how to access it. Where an organisation wishes to go beyond the minimum statutory obligations, its fuller workplace response should be highlighted and promoted within the organisation. The Guidance Note sets out suggested options for raising awareness about the workplace response to domestic violence such as:
- Have senior organisational leaders announce the workplace response.
- Add information wherever employees access information related to health, safety, and wellbeing.
- Post information in a conspicuous location at the work site(s).
- Include information in staff induction processes.
Different levels of training should be provided to employees based on their roles. In addition, training and raising awareness initiatives should not be made to avoid causing unintentional distress to anyone.
We have set out below our recommended next steps for employers.
- Employers should ensure they are clear about the statutory obligations and entitlements in relation to domestic violence leave that will come into effect on 27 November 2023 and notify employees of their rights.
- Once the Regulations setting out how to calculate an employee’s full pay for domestic violence leave are published, they should be considered by those responsible for these calculations.
- Consideration should be given as to how domestic violence leave will be recorded on internal systems and on payslips bearing in mind the importance of confidentiality.
- Employers should identify those that will be responsible for implementing the leave and potential designated persons and ensure they avail of the free online training on offer as soon as possible. They can sign up through the new website: www.DVatWork.ie.
- A thorough review of the Template Policy and Guidance Notes should be undertaken. For larger organisations, this may necessitate the establishment of an internal working group. Employers should carefully consider what additional supports they will provide and put in place their full workplace response. For many organisations, this is unlikely to be in place by 27 November 2023, given the short lead in time between the publication of these resources and the effective date of the leave. It will be essential that those tasked with implementing an organisation’s response have received adequate training and have access to suitable and appropriate supports. Significant supports for employers are available through the above website at the following link: (womensaid.ie)
- Consider how to make the workplace a disclosure-friendly environment, such as visible senior leadership commitment, a range of practical support options, training and awareness-raising and ensuring employee trust when it comes to confidentiality.
- Consider what other internal policies and procedures require updating to reflect an organisation’s response, including health and safety, disciplinary, remote / hybrid working, record retention, employee leave, employee communications, wellbeing, IT and payroll.
For more information on implementing domestic violence leave in your workplace, please contact a member of the Employment Group.
The content of this article is provided for information purposes only and is not legal or other advice.