Walking the talk on disability-based discrimination in employment

• Published date: 04 March 2023
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment
• Law Firm: Wynn Williams Lawyers
• Author: Mr Anthony Drake

Discrimination is a reality for disabled people. The Human Rights Act 1993 and the Employment Relations Act 2000 are two key statutes which cover discrimination in employment. The Human Rights Act does not define discrimination, but rather it lists prohibited grounds of discrimination, for example disability, which means physical disability or impairments, physical illness, psychiatric illness etc. and makes it unlawful to discriminate on these grounds in employment. The Employment Relations Act repeats the prohibited grounds found in the Human Rights Act. There is also an important legislative overlay (in the Employment Relations Act) which requires parties to an employment relationship to act in good faith towards each other. This includes the obligation not to mislead or deceive.

Despite the protections in legislation, many people with disabilities experience discrimination or face multiple disadvantages which affect their job prospects, quality of life and mental health. We all know (or should know) that there is no excuse for discrimination. Although good strides have been made in expanding the opportunities for people living with disabilities, there is still some distance to travel to reach true equity. Some employers discriminate against people with disabilities through unfair recruitment practices. For example, including physical requirements for a role that might not actually be necessary (i.e. an office based role). Obviously there are some jobs where certain disabilities will genuinely disqualify a candidate from the job, but these are few and employers should "think outside the box" about how accommodations can make the role work.

So, what can an employer rightfully ask a job candidate about any health conditions (including long-term health conditions) or...