General / 25 November 2016
Discrimination claims and complaints are becoming more popular with employees, and employers need to understand their obligations in this area and take action where an issue of discrimination arises.
Employees can choose to bring a discrimination claim in either the Human Rights Review Tribunal (HRRT) (within one year) or the Employment Relations Authority (ERA) (within 90 days). Recent remedies awarded by the HRRT at a significantly higher level than the ERA suggest this avenue is likely to be used increasingly in future.
What is workplace discrimination?
In summary, workplace discrimination means treating an employee differently, to the employee’s disadvantage, on the basis of a number of prohibited grounds which are outlined in the Human Rights Act 1993 (HRA) and the Employment Relations Act 2000 (Act). The prohibited grounds include age, race or colour, sex, sexual orientation, disability, religious or ethical belief and marital status. Prohibited grounds also include refusal to do work on the grounds of health and safety, and union involvement.
The HRA and the Act provide that an employer discriminates against an employee if, because of one of the prohibited grounds, they:
refuse or omit to offer or afford to that employee the same terms and conditions of employment, benefits or opportunities as are made to other employees of the same, or substantially the same, qualifications, experience or skills and employed in the same or substantially similar circumstances;
dismisses or subjects the employee to any detriment, in circumstances in which other employees of that description are not, or would not, be dismissed or subjected to such detriment; or
retires that employees, or causes the employee to retire or resign.
In discrimination cases, the key test is whether one of the prohibited grounds is a material ingredient in making the decision to treat an employee in the way he or she was treated. Discrimination can occur directly, where an employee is treated less favourably due to one of the prohibited grounds, or indirectly, where one of the prohibited grounds is applied to a group the employee belongs to, therefore disadvantaging them and others in that group. For example, indirect discrimination could occur where a minimum height restriction is stated for a role in a recruitment process. While the job advertisement might not directly say women cannot apply, as women are generally shorter then men, a lot of women would not be able to satisfy the necessary requirement. Indirect gender discrimination may therefore occur.
Are there certain situations where an employer can lawfully discriminate?
In some circumstances, an employer can lawfully discriminate, where a requirement is a genuine occupational qualification, such as a specification based on gender or age. For example, a role modelling female clothing may reasonably require a female employee.
However, employers are obliged to ensure the requirement is truly needed for the role, and must accommodate employees’ needs and differences, unless they can’t reasonably do that. For example, where an employee refuses to work a particular day of the week for religious reasons, an employer must accommodate this if they can do so without unreasonable disruption to their business.
We recommend that employers educate employees on what discrimination is – especially senior managers, and having a clear company policy outlining the steps an employee who is concerned they are being discriminated against may take to address this.
Complaints about discrimination need to be addressed swiftly, by a full and fair investigation. If in doubt – seek professional legal advice.
Disclaimer: We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your employment lawyer for any questions specific to your workplace.