There are a number of grounds on which discrimination in the workplace is illegal. If it is proven that an employee suffered unfair treatment on the grounds of discrimination, the effects on your business could be devastating.
Developing a reputation as a discriminatory company can reduce morale and productivity, cause other workers to leave, and prevent new talent from applying for roles.
What is discrimination in the workplace?
Discrimination in the workplace occurs if an employer:
❌ Gives an employee different terms of employment, different conditions, less opportunities for training than other employees when they have the same experience or qualifications or are employed under similar circumstances.
❌ Dismisses an employee or makes a decision which negatively impacts their ability to perform the job. when other employees doing a similar job are not treated in the same way.
❌ Fails to make reasonable accommodations that an employee with a protected characteristics needs to perform their role.
❌ Creates unfavourable working conditions in order to make the person resign or retire, and the reason is directly or indirectly linked to a prohibited ground of discrimination.
All of the above count if they are found to be based on a prohibited ground of discrimination.
There are some specific employment situations which are exceptions and prohibited grounds of discrimination do not apply. In these cases, it is not unlawful to make employment-related decisions on the basis of a prohibited ground. To give an example, in some cases it is legal to employ only a male or a female for a particular role.
What is a prohibited ground of discrimination at work?
A prohibited ground of discrimination is when an employee is treated negatively based on any of the following protected attributes:
• Age
• Race or skin colour
• Nationality or ethnicity
• Sex (which extends to pregnancy of an employee or delivering a child)
• Sexual orientation
• Disability
• Religious beliefs or ethics
• Marital status, familiar status, or family violence involvement
• Status of employment
• Any political opinion
• Union activity
All of these grounds are protected by the Employment Relations Act 2000 and the Human Rights Act 1993 (apart from involvement in union activities).
What are examples of discrimination in the workplace?
Examples of workplace discrimination include:
• Gender discrimination: Paying a woman in the same role as a man a reduced rate of pay. The Equal Pay Act 1972 makes it illegal to set separate rates of pay for men and women.
• Age discrimination: Ignoring an employee’s application for a promotion on the grounds that they are old and will likely soon retire.
• Religious discrimination: Forcing a Jewish employee to work on a Saturday. According to Judaism, Saturday is a day of rest known as the Sabbath.
What can an employee do if they feel they have experienced discrimination at work?
How an employee should respond to discrimination in the workplace will depend on their stage of employment.
If the discrimination was before employment
The Human Rights Act 1993 protects prospective employees from discrimination in most areas of the hiring process, including job advertisements, application forms, interviews and job offers. It also applies to unpaid workers and independent contractors.
If the discrimination was during employment
If an employee thinks they have been unlawfully discriminated against during their employment, they should raise any alleged discrimination with their employer in an informal conversation. If this does not resolve the issue, there are further options available to the employee. They can either:
Go to mediation and raise a personal grievance claim under the Employment Relations Act 2000
Make a direct discrimination complaint to the Human Rights Commission
Discrimination issues under the Human Rights Act 1993
For employees with complaints of discrimination in the workplace, the Human Rights Commission provides a free mediation service.
If the mediation process fails to resolve the complaint, the employee can escalate the case to a Human Rights Review Tribunal, which will be reviewed by The Director of the Office of Human Rights Proceedings.
Discrimination issues under the Employment Relations Act 2000
If discrimination takes place in the employment relationship, the employee and employer should hold discussions to try to resolve the issue. Under the Employment Relations Act 2000, the employee can bring a support person to the meeting, such as a union representative or lawyer.
If the problem can’t be resolved through these discussions, the employee can use the free and confidential employment mediation service.
If all else fails, the employee can take their personal grievance to the Employment Relations Authority.
The Employment Relations Authority
The Employment Relations Authority is independent and helps to resolve employment relationship problems, including cases of discrimination in the workplace.
Any employer or employee who has an employment problem can apply to have their case heard at the Employment Relations Authority.
The Employment Relations Authority’s claims review process is more formal than mediation but less formal than a court.
Your responsibilities with discrimination in the workplace
Allegations of discrimination at work are serious and should not be taken lightly. Failing to address any allegations of discriminations early and fairly can lead to a lengthy and expensive process.
Employsure can help you ensure your policies and processes are compliant, minimising the risk of any discrimination claims. Kiwi business owners can call our FREE 24/7 Advice Line on 0800 568 012 to have any questions answered.
