Employment agreements and discrimination

by The Findlaw Team

In New Zealand, the Human Rights Act 1993 and Employment Relations Act 2000 makes it unlawful for an employer to discriminate against an employee (or potential employee) on certain, specified grounds (eg gender, age, disability, sexual orientation, and race).

There are many stages during an employment relationship where an employee may consider they have been discriminated against by the employer.

One of these stages is setting the terms and conditions of employment and putting them into writing in an employment agreement. This could be at the beginning of the employment relationship, or during the relationship when one of the parties wishes to vary the agreement.

Human Rights Act 1993

Under section 22(1)(b) of the Human Rights Act 1993, it is unlawful to offer or give any of the following on a less favourable basis, because of any of the prohibited grounds:
  • Terms and conditions of employment;
  • Fringe benefits (eg superannuation or insurance cover);
  • Training;
  • Promotion; and
  • Employment transfers.

Salary and remuneration packages are a term and condition of employment. Equal pay for work of equal value must be provided. This is a positive obligation. It is not a defence to say that the complainant never asked for the same pay as colleagues.

Arbitrary starting and finishing times that are not necessary for the efficient performance of the job and which create hardship for workers with family responsibilities, can constitute family status discrimination.

An employer may be indirectly discriminating against an employee returning from parental leave, who seeks to continue his or her career on a part-time basis, continuing to care for a young child, if the employer refuses to consider whether the work can be undertaken on a part-time basis. While some jobs may not be able to be done on this basis, many can.

Case example: Inflexibility in roster changes

In Teding van Berkhout v Commissioner of Police (2013), the Employment Relations Authority held that an employee was constructively dismissed when she resigned after her employer changed her rostered hours, creating severe difficulties due to her family commitments.

The employee had worked for the Police since 1988. Following the birth of her second child in 2003, she worked 16 hours a week as a call taker/dispatcher. This arrangement was approved under the employer's Flexible Employment Option Policy (FEO).

In 2011, a new roster arrangement was introduced for all employees who worked reduced hours under the FEO policy. Under the new roster, the employee would have to work 20 hours a week and some of her shifts would start at 17.00. Her shifts had previously started at 18.00.

The employee’s husband also worked for the Police and didn't finish work until 17.00. This made it very difficult for her to start at that time due to child care issues.

The employee resisted the new shifts and asked to remain at 16 hours a week, starting at 18.00. She was told that if she did not agree to the new shifts by a certain date, she would have to return to full-time duties. She signed an agreement "under protest" and worked the new hours for around three months before resigning. She claimed she had been constructively dismissed.

The Authority held that consultation in an employment setting goes beyond simply meeting with an employee in an endeavour to force them to accept new terms of employment. In particular, genuine efforts must be made to accommodate the employee's views. No such efforts were made by the employer in this case - the new roster was simply imposed upon her.

The employer did not explore the possibility of making small changes to the new roster to ease the employee’s "most severe difficulty". For example, the possibility of her starting work at 17.30 was not explored.

The Authority held the employer was unnecessarily inflexible in its insistence that the employee must commence at 17.00. Such inflexibility had a real adverse impact on her.

Section 4(1A)(b) of the Employment Relations Act 2000 imposes the duty to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, amongst other things, responsive and communicative. By failing to explore fully whether the communications centre could have accommodated a 17.30 start, the employer failed to comply with this duty.

The Authority concluded that the employee was constructively dismissed. It ordered the employer to pay lost remuneration and $10,000 compensation for humiliation, loss of dignity and injury to her feelings.

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