From 27th November 2023, all employees in Ireland are entitled to avail of up to five days fully-paid domestic violence leave.
As new legislation pertaining to Irish employees comes into effect, Paul D Maier BL examines what the benefit means for employees, employers and practitioners specialising in employment law.
A New Legal Framework
The Work Life Balance and Miscellaneous Provisions Act 2023 (No. 8 of 2023) introduced domestic violence leave on 4th April 2023. Section 7 of this Act, commenced on 27th November 2023, by the Minister for Children, Equality, Disability, Integration, and Youth, establishes a new section 13AA in the Parental Leave Act 1998, outlining the provisions for domestic violence leave, the legal framework creating this entitlement, the substantive entitlement and how it is defined, the ways in which it is different than other types of statutory leave, the way it will operate in practice, and the resources available in implementing this leave.
Subsection 13AA(6) entitled the Minister to create regulations which set a prescribed daily rate of pay for each day of domestic violence leave. After consultation with stakeholders, the Minister made the Parental Leave Act 1998 (Section 13AA) (Prescribed Daily Rate Of Domestic Violence Leave Pay) Regulations 2023 (S.I. No. 574 of 2023) which set the prescribed rate of pay at 100%, or full pay.
What is Domestic Violence Leave?
Domestic violence leave is a type of statutory leave for employees where the employee themselves, or a “relevant person” of the employee is currently experiencing domestic violence.
Domestic violence is defined as violence, or threat of violence, including sexual violence and acts of coercive control committed against an employee or a relevant person by another person who—
- is the spouse or civil partner of the employee or relevant person, is the cohabitant of the employee or relevant person,
- is or was in an intimate relationship with the employee or relevant person, or
- is a child of the employee or relevant person who is of full age and is not, in relation to the employee or relevant person, a dependent person;
A “relevant person” of an employee is:
- the spouse or civil partner of the employee,
- the cohabitant of the employee,
- a person with whom the employee is in an intimate relationship,
- a child of the employee who has not attained full age, or
- a person who, in relation to the employee, is a dependent person;
The purpose of the domestic violence leave is to enable the employee to avail of assistance which includes; to seek medical attention, obtain psychological or other professional counselling, relocate temporarily or permanently, and more.
How is Domestic Violence Leave Different?
Domestic violence leave is different than other types of statutory leave because of the nature of domestic violence and its impact on victims and survivors.
Employers must pay employees their full wage for this type of leave. This is different than many other types of leave, where employers are not obliged to pay employees, and any funding is provided by social protection payments. This is because victims and survivors are often subject to surveillance over their finances, and any variation in their wages or how they are paid may reveal to an abuser attempts to avail of domestic violence leave. This is also why Government guidance recommends payment of domestic violence leave not be designated as such on an employee’s payslip.
Domestic violence leave can also be applied for retrospectively, after the employee’s absence from work. Most other types of statutory leave requires an employee to apply for such leave prior to it occurring, and requires the employer to approve that leave. This is because of the unpredictable nature of requiring such leave. Employees can confirm their leave was taken as domestic violence leave and the dates it was taken.
New Law in Practice
Employees are entitled to claim for domestic violence leave directly from their employer, without the need for any engagement from the State. Employees will make that claim in a form and method defined by their employer. Guidance documents provided by Government on the operation of domestic violence leave advises that employers may wish to designate a person or set of people, other than an employee’s line manager, who are be specially trained and available to employees as a point of contact for domestic violence issues and requests for domestic violence leave.
As this is an entitlement administered and paid for entirely by employers, it is possible that some employers may be resistant to provide domestic violence leave in some circumstances. This may be the case if an employee claims domestic violence leave retrospectively, or for a reason which meets the statutory criteria but may fall outside what an employer thinks is “domestic violence”, or in a way which an employer believes is unfair.
If an employee is entitled to domestic violence leave but is not provided it, that employee may make a complaint to the Workplace Relations Commission under section 41 of the Workplace Relations Act 2015, alleging that their entitlement under the Parental Leave Acts 1998 to 2023 has not been honoured. If that complaint proceeds to adjudication by a WRC adjudication officer, section 21 of the Parental Leave Acts 1998 to 2023 allows an adjudication officer to make an award of compensation, subject to a maximum of 20 weeks’ remuneration. Such a complaint must be made within six months of the contravention, although an adjudication officer may extend that time limit by a further six months if the delay was for reasonable cause.
In practice, I would not expect many complaints to be made for a failure to provide domestic violence leave, due to the concerns about abuser surveillance, the limited overall value of the leave (five days’ compensation), and the challenges which arise in making any legal claim, even given the WRC’s simplified approach to making complaints. However, the ability to award up to twenty weeks’ compensation is significant, and the right circumstances may give rise to rare, but substantial, awards under these provisions.
How to Safeguarding Employees’ Well-Being
The Department of Children, Equality, Disability, Integration and Youth has published a guidance note on workplace supports for employees affected by domestic violence and abuse, and a policy template for workplace supports for employees affected by domestic violence and abuse. These documents provide guidance to employers on how to best implement their obligation to provide domestic violence leave, and encourages employers to make this leave part of a wider policy on supporting employees with domestic violence. These resources are available at www.dvatwork.ie.
Domestic violence is a very serious matter which has the potential to not only impact an employee’s attendance, but also their performance, stability, and safety while at work. Employers and their advisors should not only implement domestic violence leave, but should also consider a wider organisational policy on how to appropriately detect potential domestic violence and how best to address it if it occurs to their employees.
The views expressed above are the author’s own and do not reflect the views of The Bar of Ireland.