Employment

What does the Human Rights Act mean by employment?

Employment includes:

  • advertisements for employment
  • pre-employment questions and interviews
  • conditions of employment
  • training opportunities
  • promotion / transfer
  • fringe benefits
  • termination
  • retirement.

Employee and employer definitions:

  • an ‘employee’ can be a job applicant, voluntary worker, contract worker or paid employee
  • an ‘employer’ may ‘employ’ any of the above.

What does the Human Rights Act says about employment?

It is unlawful for an employer or any person acting on behalf of an employer, where the applicant or employee is qualified for work:

  • to refuse or omit to employ the applicant
  • to offer or afford less favourable terms of employment, conditions of work, superannuation or other fringe benefits, and opportunities for training, promotion, and transfer than are made available to applicants or employees of the same capabilities or similar circumstances on work of that description
  • to terminate employment or subject the employee to any other detriment. This includes situations where an employee resigns from their employment involuntarily
  • to retire an employee, or require or cause the employee to retire or resign, by reason of any of the prohibited grounds of discrimination.

Application forms and interviews:

It is unlawful for any person to use or circulate any form of application for employment or to make any inquiry of or about any applicant for employment which indicates, or could reasonably be understood as indicating, an intention to commit a breach of the Act.

Advertising:

  • It is unlawful for any person to publish or display (or cause to be published or displayed) any advertising, which indicates, or could reasonably be interpreted as indicating, an intention to breach the Human Rights Act.

Employer liability under the Human Rights Act:

  • Anything that is done or omitted by an “employee” is treated as done or omitted by the “employer” too, whether or not it was done with the “employer’s” knowledge or approval.

Example: An employer may be held responsible if one of his/her employees sexually harasses another employee.

  • If however, an employer can show that s/he took all reasonably practicable measures to prevent the employee doing such acts, then they may have a defence and avoid liability. This means that the employer must be able to prove, for example, that they had a suitable discrimination and harassment prevention programme in place prior to the discrimination or harassment occurring.

Exceptions

There are a number of circumstances where it is not unlawful to discriminate in the area of activity covered by employment matters. These include:

Disability:

If a person requires special services or facilities and it is not reasonable to provide these, then the employer need not provide them.

  • Risk of harm exception

If a risk of harm to that person or others is not reasonable to take, then the employer need not take the risk.

Other exceptions with the relevant ground of discrimination

  • Crews of ships
    Ships and aircraft, people employed outside New Zealand and not on New Zealand craft.
  • Work involving national security
    Religious or ethical belief, political opinion, disability, family status, national origin, age – under 20 years of age.
  • Authenticity and privacy
    Genuine occupational qualification (sex and age).
    Domestic employment in private house or issues of privacy (sex, religion and ethical belief, disability, age, political opinion or sexual orientation).
    Counsellor (race, ethnic or national origins, sexual orientation).
  • Work performed outside New Zealand
    Sex, religious or ethical belief, age if the work is to be performed wholly / mainly outside New Zealand or because of the customs of that country.
  • Religion
    Organised religion and private schools.
  • Age
    Genuine occupational qualification or paid at a lower rate – under 20 years of age.
  • Political opinion
    Political adviser, secretary, MP, staff member of political party.
  • Family status
    Reporting relationship in employment.
  • Armed forces
    Sex (for combat roles).

General qualification on employment exceptions:

  • No employer can treat an employee differently (based on a prohibited ground), even if an exception applies, if, with some adjustment of activities, some other employee can carry out the duties.

Measures relating to pregnancy, childbirth or family responsibilities:

It is not unlawful to offer preferential treatment to:

  • a woman who is pregnant or
  • a person who has responsibility for dependants.

Further information:

 

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