It is possible for discrimination to occur at all stages of employment. Discrimination can take on many different forms. Section 21 of the Human Rights Act 1993 details an extensive list of the prohibited grounds of discrimination. For example: people cannot discriminate on the basis of sex, marital status, religious beliefs, race or age. From an employment law perspective, it is important to note the areas where discrimination can occur and how it is interpreted.
Discrimination that occurs prior to employment comes within the Human Rights Act. This means that discrimination will occur where an applicant is refused employment based on a discriminating factor. A personal grievance claim for discrimination during employment can be brought under the Employment Relations Act 2000 (as well as the Human Rights Act). Discrimination will be found in these situations:
These situations are subject to some exceptions, for example, nothing shall prevent differential treatment based on sex where the position is for the purpose of an organised religion.
There are many pre-employment processes that employers conduct that need to remain neutral.
When advertising for employees, there needs to be a clear description of the qualities that are being looked for. It is important to state essential skills that align with the job vacancy and to not overstate qualities needed. This overstatement might act as a cover for discriminating actions.
It is important for the employer to be aware of medical conditions that may be relevant to employment so that they can assess whether they can make provisions to accommodate the applicant or whether the medical condition will prevent the applicant from carrying out their work safely.
In Imperial Enterprises v Attwood, Attwood was asked to disclose any medical conditions in her application for a shop assistant position. She detailed that she had a hip issue but not that she had a pre-cancerous condition or irritable bowel syndrome. Over the course of her employment, she had several days off due to the medical conditions she did not disclose. She was subsequently dismissed. The Court held that neither condition had a serious impact on her job, so she did not need to disclose those conditions. Further, it was not detailed in the questionnaire what the information would be used for.
In contrast, in Lidiard v NZFSC, Lidiard was applying to be a firefighter. The Australasian Fire Authorities Council has guidelines for health and fitness assessment for fire and emergency services workers, which set out that detailed medical history is needed in order to determine whether to employ the worker and whether further arrangements might be needed to facilitate employment if any health conditions are stated. It was held that the requirement for detailed medical information highlighted that the information was requested for the purposes of assessing a person’s physical and mental fitness to perform the role and duties of a firefighter. Lidiard did not disclose that he had had post-traumatic stress disorder and depression in the past and falsified some of his answers on the questionnaire. This prevented the employers from carrying out a more detailed review and adequate assessment of his application. The Court decided the medical questionnaire was used for the recognisable purpose to determine whether the person was qualified for the role. This was not held to be discrimination.
Both the Human Rights Act and Employment Relations Act detail exceptions to the discrimination rule in certain areas of employment. In Lidiard, section 29 of the Human Rights Act was discussed. This detailed that different treatment on the basis of disability may be allowed where the environment for or nature of the duties is such that a person could only perform them with unreasonable harm to themselves or others. This exception does not apply where the employer could, without unreasonable disruption, take steps to reduce the risks to normal levels. In Lidiard, the employers were not given this option as Lidiard did not disclose his medical history.
Employers must not use a discriminating factor as a reason to dismiss an employee. This is largely seen through cases relating to religious belief.
In Nakarawa v AFFCO, Nakarawa requested not to work on Saturdays as he wanted to observe that Sabbath day. This meant that he would not work from sunset Friday to sunset Saturday. He was dismissed as it was deemed to be unacceptable to not work on Saturday. The Human Rights Act sets out that employment cannot be terminated by reason of a discriminating factor where another employee employed by the same employer on work of that description would not be dismissed. It was held that an adequate comparator was those in the same circumstances who do not hold religious beliefs. The discriminating factor must play no part in the decision to dismiss. It was held that the employee was dismissed by reason of religious beliefs, not because he couldn’t work on Saturdays.
It is evident that discrimination can occur in a vast range of situations. In a world of such diversity, employers need to be aware of their conduct and treat every applicant and employee equally.