Changes for employers
and employees in 2019

There are a number of new provisions which will affect employers and employees alike that will be law this year.

The first of these is the amendment to the 90-day trial periods, which have become popular. As indicated previously in this article the Courts (and Authority) approach to the 90-day trial clauses have been to interpret the law and the drafting of the clauses strictly. Hence, any mistake will invalid the clause and thus expose the employer to significant penalties if the employer has relied upon the clause alone, which they should do if it is valid. Proper guidance with a critical eye is important here. The reason to use the termination under the trail period is that the employee does not fit in.

The, then new government promised to abolish the clauses but instead has provided that they will only apply to employers who have 20 or more employees at the time that the person was employed. So, 19 employees or under the clauses can still apply.

The difficulty advisors and employers will have, and we have no answer yet, is how will employers with a work force that varies cope. Does the employer have to keep records to ensure that the number of employees on that day were below 20? Employers already must keep accurate time and wage records and we can see requests for discovery of ALL employee’s time and wage records to determine how many employees were employed on that day. Also, be vary of sending out multiple offers of employment when the total number of employees might exceed 20. The offer and acceptance process will be of utmost importance.

Any way we have this to look forward to on 6th May 2019.

Secondly is the Domestic Violence leave per employee per annum. Like Sick leave only different in key ways. From 1 April 2019 all employees will be entitled to request a short term (2-month or shorter) variation to their working arrangements for the purpose of assisting the employees to deal with the effects on the employees of being people affected by domestic violence. The Act is the Domestic Violence-Victim’s Protection Act 2018. An employer will have to deal with a request for such leave as soon as possible but not more than 10 working days after receiving the request. Requests must be in writing and working arrangements include, hours of work, days of work, place of work, any additional terms that may need variation. The timing of the domestic violence is irrelevant and may have occurred before the employment relationship commenced.

As to proof the Act provides that an employer may require proof under certain conditions. The employer must request proof as soon as possible but again not more than 3 days from the request. There are grounds to refuse and these are set out in the Act which are extensive (a-h inclusive) but will be subject to the reasonable employer test. It will be a brave employer who requests proof and what that proof may entail is not specified in the Act.

The employee has a choice of procedures if the employer refuses, including mediation, application to the Employment Relations Authority or the Labour Inspector.