Employment Law Bulletin — [2007] ELB 116

As a major proponent and one of the first signatories to the United Nations' Convention on the Rights of Persons with Disabilities, New Zealand has recognised the need to do more to prohibit discrimination on the basis of disability and to ensure that reasonable accommodation is provided to persons with disabilities in the workplace. Although our domestic law has long provided for these matters, the extent to which it does so is virtually untested.

Discrimination in the employment setting is prohibited by both the Employment Relations Act 2000 ("ERA") and the Human Rights Act 1993 ("HRA"). An employee who is subjected to unjustified treatment by reason of discrimination may pursue a remedy under either Act. A job seeker who is rejected as a result of unlawful discrimination will have to rely on the HRA, no employment relationship having been created.1

Among the prohibited grounds of discrimination is disability, defined in s 21(1) of the HRA to include: physical and psychiatric illness; physical, intellectual or physiological impairment; any other abnormality of psychological, physiological or anatomical structure or function; reliance on remedial means such as a wheelchair or guide dog, and the presence in the body of organisms capable of causing illness. The definition also contemplates that the affliction will be of a permanent or at least long-term nature.2

The prohibition is not, however, an absolute bar to discriminatory treatment. Section 106 of the ERA imports s 29 of the HRA to provide that nothing in s 104 of the ERA, prohibiting discrimination, prevents different treatment based on disability if either of two situations exists.

The first is where the employment position is such that the person could perform the duties satisfactorily only with the aid of special services or facilities which it is not reasonable to expect the employer to provide.

The second is where the person could only perform them at the risk of causing harm to themselves or others and it is not reasonable either to take the risk or to take measures to reduce it to a normal level.

Section 29 accordingly imposes a duty on employers to accommodate a disabled employee's special needs by providing special services or facilities and/or by taking steps to reduce any associated risk of harm, but only to the extent it is reasonable to expect them to do so.

Just how the reasonableness of an employer's actions and the circumstances in which different treatment will be justified are to be assessed for these purposes is not at all clear. The Acts themselves provide no guidance as to the factors that should be taken into account and the terms "services" and "facilities" are undefined.

Section 29 has seldom been considered in either the employment or human rights jurisdictions. In particular the extent of the legal obligation to provide special services or facilities, in the absence of risk, has yet to be considered in a reported decision. This is perhaps surprising; given the 413,200 New Zealanders aged 15 to 64 who reported some form of disability in the 2001 census, and indications that half of them required assistance as a result.

...