Domestic Violence—Victims' Protection Act 2018

New Part 6AB inserted

6 New Part 6AB inserted

After Part 6AA, insert:

Part 6AB Flexible working short-term for people affected by domestic violence

69AB Object of this Part

The object of this Part is to—

(a)

provide employees who are people affected by domestic violence with a statutory right to make, or to have made on their behalf, a request for a short-term (2-month or shorter) variation of their working arrangements (including any additional terms that need variation), for the purpose of assisting the employees to deal with the effects on the employees of being people affected by domestic violence; and

(b)

require an employer to deal with a request as soon as possible but not later than 10 working days after receiving it; and

(c)

provide that an employer may refuse a request only if proof of domestic violence is required and not produced, or the request cannot be accommodated reasonably on certain non-accommodation grounds; and

(d)

if an employer does not deal with a request in accordance with this Part, provide for reference of the matter to a Labour Inspector, mediation, or the Authority.

69ABA Interpretation

In this Part, unless the context otherwise requires,—

additional terms that need variation, in relation to an employee, means 1 or more of the following:

(a)

the location of the employee’s workplace:

(b)

the employee’s duties at work:

(c)

the extent of the contact details that the employee must provide to the employer:

(d)

any other term of the employee’s employment—

(i)

that is not a term covered by paragraphs (a) to (c) of this definition or by paragraphs (a) to (c) of the definition in this section of working arrangements; and

(ii)

that, in the employee’s view, needs variation to enable the employee to deal with the effects of being a person affected by domestic violence

child has the meaning given to it in section 2 of the Domestic Violence Act 1995

domestic violence has the meaning given to it in section 3 of the Domestic Violence Act 1995

mediation means mediation provided under section 144

non-compliance with section 69ABE includes, without limitation, making a wrong determination under 1 or both of section 69ABF(1)(a) and (b)

person affected by domestic violence means a person who is 1 or both of the following:

(a)

a person against whom any other person inflicts, or has inflicted, domestic violence:

(b)

a person with whom there ordinarily or periodically resides a child against whom any other person inflicts, or has inflicted, domestic violence

request means a request made under this Part that—

(a)

is written; and

(b)

requests an employer to vary an employee’s terms and conditions of employment relating to the employee’s working arrangements; and

(c)

is made by the employee or on the employee’s behalf

working arrangements, in relation to an employee, means 1 or more of the following:

(a)

hours of work:

(b)

days of work:

(c)

place of work (for example, at home or at the employee’s place of work):

(d)

additional terms that need variation.

Employee’s statutory right to make request

69ABB When and why employee may make request

(1)

An employee who is a person affected by domestic violence may make a request—

(a)

at any time; and

(b)

for the purpose of assisting the employee to deal with the effects on the employee of being a person affected by domestic violence.

(2)

Subsection (1) applies regardless of how long ago the domestic violence occurred, and even if the domestic violence occurred before the person became an employee.

(3)

A request made under this Part for a short-term (2-month or shorter) variation of the employee’s working arrangements (as defined in section 69ABA) does not prevent a request also being made under Part 6AA by or on behalf of the employee for a permanent, or fixed-period longer than 2 months, variation under that Part of the employee’s working arrangements (as defined in section 69AAA).

69ABC Requirements relating to request

A request must be in writing and—

(a)

state—

(i)

the employee’s name; and

(ii)

the date on which the request is made; and

(iii)

that the request is made under this Part; and

(b)

specify the variation of the working arrangements requested and the period of time (which must be no longer than 2 months) for which the variation is requested; and

(c)

specify the date on which the employee proposes that the variation take effect and the date on which it is proposed that the variation end; and

(d)

specify how, in the employee’s view, the variation will assist the employee to deal with the effects of being a person affected by domestic violence; and

(e)

explain, in the employee’s view, what changes, if any, the employer may need to make to the employer’s arrangements if the employee’s request is approved.

Duties of employer

69ABE Employer must notify decision as soon as possible

(1)

An employer must deal with a request as soon as possible, but not later than 10 working days after receiving it, and must notify the employee in writing of whether his or her request has been approved or refused.

(2)

In or before giving the notification under subsection (1), the employer must provide the employee with information about appropriate specialist domestic violence support services.

(3)

If the employer refuses an employee’s request, the notification given under subsection (1) must—

(a)

state that the request is refused because of 1 or both grounds specified in section 69ABF(1)(a) and (b); and

(b)

state the ground or grounds for refusal; and

(c)

explain the reasons for that ground or those grounds.

69ABEA Proof of domestic violence

(1)

An employer may require proof that an employee is a person affected by domestic violence to be produced—

(a)

to the employer; and

(b)

by or on behalf of an employee; and

(c)

for the purposes of a request made by or on behalf of the employee; and

(d)

as soon as practicable after that proof is required by the employer under this section; and

(e)

within 10 working days after the employer receives the request.

(2)

However, the employer may require proof of that kind only if—

(a)

the employer informs the employee as early as possible that the proof is required; and

(b)

the employer requires the proof within 3 working days after the employer receives the request.

Compare: 2003 No 129 s 68

69ABF Grounds for refusal of request by employer

(1)

An employer may refuse a request only if the employer determines 1 or both of the following:

(a)

that proof required to be produced under section 69ABEA was not produced within 10 working days after the employer receives the request:

(b)

that the request cannot be accommodated reasonably on 1 or more of the non-accommodation grounds specified in subsection (2).

(2)

The non-accommodation grounds are—

(a)

inability to reorganise work among existing staff:

(b)

inability to recruit additional staff:

(c)

detrimental impact on quality:

(d)

detrimental impact on performance:

(e)

insufficiency of work during the periods the employee proposes to work:

(f)

planned structural changes:

(g)

burden of additional costs:

(h)

detrimental effect on ability to meet customer demand.

(3)

An employer must not refuse a request just because—

(a)

the request is from an employee who is bound by a collective agreement; and

(b)

the request relates to working arrangements to which the collective agreement applies; and

(c)

the employee’s working arrangements would be inconsistent with the collective agreement if the employer were to approve the request.

Resolving disputes

69ABG Employee has choice of procedure at initial stage

(1)

This section applies if an employee believes that the employee’s employer has not complied with section 69ABE.

(2)

The employee may do 1 of the following:

(a)

refer the matter to a Labour Inspector who must, to the extent practicable in the circumstances, assist the employee and employer to resolve the matter; or

(b)

refer the matter to mediation, at which the matter is treated as an employment relationship problem; or

(c)

apply to the Authority for a determination as to whether the employer has complied with section 69ABE.

(3)

A reference or application under subsection (2)(a), (b), or (c) must be made within 6 months after the relevant date.

(4)

In subsection (3), relevant date means,—

(a)

if the employer notifies a refusal within 10 working days after receiving a request, the date on which the employer notifies the employee of the employer’s refusal; or

(b)

in any other case, the date that is 10 working days after the employer receives the employee’s request.

69ABH Mediation after initial reference to Labour Inspector

(1)

This section applies if the employee is dissatisfied with the result of the reference under section 69ABG(2)(a) to a Labour Inspector.

(2)

The employee may refer the matter to mediation, at which the matter is treated as an employment relationship problem.

(3)

A reference under subsection (2) must be made within 6 months after the earlier of—

(a)

the date when the result of the reference first became known to the employee; or

(b)

the date when the result of the reference should reasonably have become known to the employee.

69ABI Application to Authority after initial or later reference to mediation

(1)

This section applies if the employee is dissatisfied with the result of the reference under section 69ABG(2)(b) or 69ABH(2) to mediation.

(2)

The employee may apply to the Authority for a determination as to whether the employer has complied with section 69ABE.

(3)

An application under subsection (2) must be made within 6 months after the earlier of—

(a)

the date when the result of the reference first became known to the employee; or

(b)

the date when the result of the reference should reasonably have become known to the employee.

69ABJ Penalty

(1)

An employer who does not comply with section 69ABE is liable to a penalty under this Act imposed by the Authority.

(2)

The penalty is payable to the employee concerned.

(3)

For the purposes of the 6-month time limit in section 135(5), the date on which the cause of action for the recovery of the penalty first became known to the employee, or should reasonably have become known to the employee, must be taken to be a date after, as the case requires,—

(a)

the relevant date under section 69ABG(3); or

(b)

the applicable date under section 69ABI(3)(a) or (b).

69ABK Limitation on challenging employer

An employee may challenge his or her employer’s refusal of a request, or failure to respond to a request, only—

(a)

if the employee believes his or her employer has not complied with section 69ABE; and

(b)

to the extent provided by sections 69ABG to 69ABJ.