Domestic Abuse ‘Safe Leave’– how will it work and what does it mean for employers?

In 2022, the Northern Ireland Assembly passed the Domestic Abuse (Safe Leave) Act (NI) 2022 that will entitle victims of domestic abuse to 10 days paid safe leave each year (funded by the employer) for the purpose of dealing with issues related to domestic abuse. We previously wrote about this here. This consultation invites views on the practical measures necessary to implement the Act and establish this new right, and inform the public about the regulations the Department plans to introduce to enable employers to effectively support employees taking this leave

Why was this legislation introduced?

32,763 domestic abuse incidents were recorded by the police in Northern Ireland between 1 April 2023 and 31 March 2024. This is likely only the tip of the iceberg as a survey by the Northern Ireland Life and Times in 2023 revealed that only 63% of those surveyed would “very likely” get in touch with the police if they were subjected to domestic abuse.

The introduction of safe leave under the Act is one element of the Domestic and Sexual Abuse Strategy 2023 – 2030, which places a renewed focus on tackling domestic and sexual abuse in Northern Ireland. The Act aims to address difficulties victims experience in the workplace by ensuring that they have a specific statutory right to time off from work, rather than relying on unpaid leave or sick leave. It also aims to protect them from any negative impact on their terms and conditions of employment as a result of taking leave in such circumstances.

Northern Ireland follows in the footsteps of Philippines, Canada, New Zealand, Australia and the Republic of Ireland each of whom have introduced legislation to provide equivalent workplace support.

What is safe leave and who will be entitled to it?

Safe leave is defined by the Act as paid leave from work that can be used by an employee who is a victim of domestic abuse, for the purpose of dealing with issues related to the domestic abuse.

Safe leave will be an immediate right from the first day of employment for both employees and workers (referred to together as employees for the purposes of this article). Looking at this closer, to be entitled to safe leave an employee must therefore:

a. Be a victim of domestic abuse: An employee will be considered to be a victim of domestic abuse if they have been subjected to abusive behaviour by a person to whom they are connected; and

b. Be dealing with an issue related to domestic abuse: Safe Leave Act sets out a non-exhaustive list of what might be considered ‘issues related to domestic abuse’ including:

• Obtaining legal advice or pursuing legal proceeding or remedies;
• Finding alternative accommodation;
• Taking advantage of healthcare (including mental health care);
• Obtaining welfare support;
• Protecting family members.

The Department is seeking views on how to further define these criteria, and how they can apply in practical terms.

More specifically, the consultation is exploring whether a single incident of abuse should be enough to justify taking save leave. In doing so, it compares this with the definition of ‘abusive behaviour’ constituting a criminal offence under the Domestic Abuse and Civil Proceedings Act (NI) 2021, where a course of behaviour must happen on at least two occasions. The consultation suggests that the lower threshold of one incident is more appropriate for asserting an employment right.

The consultation also seeks views on the meaning of ‘connected to’ i.e. the nature of the relationship between the victim and abuser that should be covered for the purpose of taking safe leave.

The consultation invites views on whether any further issues related to domestic abuse for which safe leave could be taken should be included, and we expect that this list of issues will be expanded and subject to Departmental Guidance following the outcome of the consultation.

How much safe leave will employees be able to take?

Employees will be entitled to 10 days of safe leave per leave year. Unlike holiday, it will not be possible to carry forward safe leave into another year so it will be important to identify when a year starts and ends to determine correct entitlement. This entitlement is higher than the entitlement to 5 days of paid domestic violence leave which was introduced in the Republic of Ireland on 27 November 2023.

In order to simplify the safe leave framework, the Department has proposed that businesses will be able to align the allocation of safe leave to their normal annual leave year.

There is, of course, nothing preventing employers from offering more than 10 days’ safe leave, this is simply the statutory minimum.

What notice must employees give to take safe leave?

Given the traumatic circumstances that will have led an employee to request safe leave, the Department intends that the process for making a request should be as easy and accessible as possible. It has emphasised that any notice requirements should be proportionate and can be easily complied with by an employee.

While the Act permits employers to require employees to give some notice to take safe leave, importantly, employees must not be required to provide evidence that they have been a victim of domestic abuse.

Some of the key questions in the consultation revolve around how these notice requirements should work in practice. There is a question as to whether employees should be required to give their employers details of the purpose for taking safe leave i.e. whether employees should be explicit as to the issue they are dealing with during the period of leave. We expect that employees will ultimately only be required to provide a very high level of detail in this regard, but we await guidance on this point following the outcome of the consultation

The consultation also seeks views on whether there should be a minimum amount of safe leave taken at any one time, for example, can it be taken in whole or part days. The consultation is mindful of the balance that needs to be struck between offering as much flexibility as is reasonably practicable for employees, while also ensuring that employers can properly manage and fulfil their obligations under the safe leave framework.

How are employees paid during safe leave?

A key element of the Safe Leave Act is the importance of victims of domestic abuse maintaining their financial independence. As such, remuneration for any period of safe leave should reflect an employee’s usual rate of pay. The Department is considering how “normal” or “usual” rate of pay should be calculated and whether it should include regular overtime, commission and bonuses, or just basic pay, and seeks views on the best approach.

Unlike other types of mandatory leave such as statutory maternity or sick leave, the Department is not proposing to fund safe leave in part, or at all. Employers will be legally required to fund this leave in its entirety which could become a meaningful increase on workforce costs for employers, even if a small portion of employees sought to access the leave.

How can employers prepare for the introduction of safe leave?

While we don’t yet have a commencement date for this legislation, we know that it is coming into force, and employers can start to prepare for it now.

Both the Labour Relations Agency and the Department of Health / Department of Justice have produced Guidance for Employers on how to support those experience domestic violence and abuse.

Two key recommendations include:

• Implementing a domestic violence and abuse policy – the Labour Relation Agency have provided a sample policy in their guidance. Your usual contact at Lewis Silkin will also be able to answer any questions you might have on drafting a policy for your organisation.
• Creating a safe and confidential space in the workplace – responding sensitively to disclosures of domestic abuse and providing effective support can be genuinely life changing for victims. Employers should consider offering additional training to HR or mental health first aiders to help them respond appropriately and to cultivate that safe space for employees.

While many aspects of the safe leave framework are already determined by the Safe Leave Act, the consultation seeks input on some specific aspects of the regulations so that this legislation can be implemented in a way to provide support for both employers and employees when tackling this difficult issue. Employers are therefore encouraged to respond to the consultation and share their views.

The Domestic Abuse – Safe Leave – Public Consultation closes at 5pm on 27th September 2024.