Employers always need to be aware
When employers think of workplace discrimination, most believe discrimination is based on race, gender or religion. But there are many types of discrimination that are unlawful in New Zealand and some of the lesser known ones can cause headaches for you as an employer if they aren’t properly addressed.
In employment, you’re discriminating if you treat an employee differently from other employees because of their circumstances. The well-known categories of discrimination are sex, religious belief, sexual orientation and race. However, it’s also illegal to treat someone less favourably on the basis of their disability, marital status, ethical belief, age, political opinion and family status. You need to be careful to avoid all types of discrimination, but two areas that can be easily overlooked are pregnancy and age.
The Employment Relations Act in New Zealand defines ‘sex’ to include pregnancy. It’s unlawful to treat your employee, or potential employee, differently because they are pregnant. That includes refusing to employ, denying the opportunity to apply for a position or a demotion, due to a woman’s pregnancy. Moving a woman off the front desk of an office to telephone duties because her bump is beginning to show, or failing to include a pregnant woman in your work place training or events have been held to be unlawful.
Discrimination against a woman due to an actual or perceived likelihood of pregnancy is also unlawful. For example, if a woman expresses a desire to have children, it’s unlawful to treat her differently because of her possible future pregnancy.
In certain circumstances, however, it’s lawful to treat a pregnant woman differently. For example, if your employee is genuinely unable to complete the terms of her employment or even her usual duties, discrimination laws don’t apply. The key is that the different treatment is for honestly held reasons and applied in good faith. It’s important to discuss the situation with your employee and consider how any issues can be resolved without changing her role.
New Zealand’s aging population is leading to an aging workforce. Workers are staying longer in their jobs and putting off retirement well beyond the age of 65. While their institutional knowledge can benefit your business, in some cases elderly employees can hold a business back. Younger employees can become frustrated and decide to go elsewhere in search of better opportunities if it is too difficult for them to progress. Elderly employees’ productivity can also suffer if they fail to keep pace with the rapidly changing technologies and new procedures.
It’s unlawful to treat an employee differently because of their age. So what can you do? If it’s a performance issue, your only option is the usual performance review and evaluation process. Your employee needs to be told how they are underperforming, and be given the tools and time to improve their performance. However, if it’s simply a case of wanting to move your employee on, to make way for younger staff, it can be tricky. Some employers encourage employees to take up voluntary retirement schemes. Unless those packages are offered to all staff and not just those over a certain age, there is a risk the packages will be discriminatory.
Whatever the situation, it’s important is to start discussions with your employee early. That way you can explore options with them and come up with plans to avoid any issues later on.
Minimising the risk of a claim
New Zealand has an Employment Resolution Service and a Human Rights Commissioner. These provide options for people wishing to pursue discrimination claims.
To minimise risk, you need to be aware of your obligation to treat all your employees the same regardless of their circumstances, and consider whether there is anything reasonable you can do to accommodate them. It also helps *
- Identify what the key requirements for the job or promotion are and ask all applicants about their ability to fulfil these, regardless of their circumstances
- If the applicant would be suitable but for their disability or circumstances, consider whether any reasonable workplace adjustments can be made so that they can meet the requirements
- Only ask questions about the applicant’s situation if there are genuine reasons for doing so, and
- Select the most suited person for the job or promotion.
As an employer you may find it daunting at times to manage all of your responsibilities and duties, and the issue of discrimination can sometimes be tricky. With the right planning and forethought, however, discrimination can be avoided. In some cases you may even discover an employee that at first seemed unsuitable because of their circumstances is in fact a perfect fit for your organisation when workplace adjustments are made.
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Copyright, NZ LAW Limited. Editor: Adrienne Olsen. E-mail: email@example.com. Ph: 029 286 3650.