1 March 2023 is Zero Discrimination Day. It celebrates the right of everyone to live a full and productive life with dignity.
In New Zealand, the right to be free from discrimination is protected by law. This right exists in our workplaces.
In this article, we provide an overview of our legal framework which has been set up to prevent discrimination as well as practical tips for supporting diversity in the workplace.
The legal framework
In New Zealand, the right to be free from discrimination is contained under our Human Rights Act, and also in employment law legislation.
The following are prohibited grounds of discrimination:
- marital status;
- religious or ethical belief; and
- disability (which includes physical, psychiatric and psychological disability, illness, impairment, or abnormality).
Diversity at work
Under the Employment Relations Act 2000, discrimination occurs when an employer (or their representative), in relation to of the above prohibited grounds of discrimination:
- refuses or does not and employee the same terms of employment, conditions of work, or opportunities as other employees who have the same or similar qualifications; or
- dismisses an employee or subjects them to detriment; or
- requires or causes an employee to retire or resign.
Having policies in place which prevent the above behaviour is a great first step. However, for the policies to be effective, they must be supported by workplace culture. In light of Zero Discrimination Day, it may be time to ask whether your organisation has:
- policies which prohibit discriminatory conduct and practices;
- a clear channel of communication when an employee experiences discriminatory behaviour;
- information about the potential impacts if an employee is found to be engaging in discriminatory conduct.
Making reasonable accommodations
An employer has to take reasonable measures to meet an employee’s needs under the Human Rights Act. This is known as making reasonable accommodation.
If employers are unwilling to make reasonable accommodations, or otherwise discriminate against an employee, they may face a personal grievance claim under the Employment Relations Act 2000 or a complaint to the Human Rights Commission.
What is a “reasonable” accommodation?
The Human Rights Act tells us an accommodation includes providing special services or facilities which aid a person to perform the duties of the position to a satisfactory standard.
This may include improving physical access to the workplace, developing alternative channels of communication, accommodating flexible working arrangements or modifying the way a job is done.
Whether an accommodation is reasonable is dependent on the particular circumstances of a case. Some guiding principles to bear in mind are:
- whether there is a risk of discrimination if the accommodation is not made;
- whether is it practical for the employer to make the accommodation;
- the nature of the employee’s role;
- the size of the organisation, and the extent of resources available; and
- the degree of disruption (if any) that may be caused by making the accommodation.
We encourage employers to seek advice around the possible reasonable accommodations they could make and monitor the effectiveness of these changes.
When can employers ask about disabilities?
Information about a disability is considered personal medical information. Employees have a right to choose whether to disclose that information.
Employers are entitled to ask about an employee’s disability only if that information is relevant to the performance of the employee’s role. This may be done as part of a pre-employment check or if any issues arise during the course of employment, and the employer requires more information to resolve these.
How can I protect human rights as an employee?
The obligation to act in good faith in an employment relationship is mutual. If you are experiencing discriminatory behaviour, or you require changes to be made to your work set up, communicating with your employer is the first step. If you do not feel comfortable doing this on your own – there is plenty of support out there.
The next step is to work with your employer to address your concerns – this could involve offering solutions. If you feel your employer is not taking your concerns seriously, you may wish to seek advice from an employment law specialist.
Employment and human rights law specialists provide tailored advice on managing a diverse team and workforce. For more information on these issues, get in touch with the team at Black Door Law.