Everybody in New Zealand has the right to be free from discrimination. This includes the right not to be discriminated against because of a disability. Under the Human Rights Act, disability is defined broadly as:

  • A physical disability or impairment;
  • A physical illness;
  • A psychiatric illness;
  • An intellectual or psychological disability or impairment;
  • Any other loss or abnormality of psychological, physiological, or anatomical structure or function;
  • Reliance on a guide dog, wheelchair, or other remedial means; and
  • The presence in the body of organisms capable of causing illness.

The prohibition on discrimination applies whether the disability is present, or whether it was in the past. It is also prohibited to discriminate against relations or associates of people with a disability because of that disability.

While there are some exceptions, discrimination is unlawful when it occurs in an employment context (including independent contracting and voluntary work). Discrimination is not allowed at any stage of the employment process beginning with pre-employment right up until the employment relationship has ended.  The prohibitions applies to job advertisements, job interviews, job offers, working conditions, pay opportunities and disadvantages, being forced to retire or leave the employment, and being terminated.

When recruiting a new employee, an employer should employ the person who best matches the job requirements, regardless of whether they have a disability. An employer has an obligation to take reasonable steps to accommodate a person with a disability by providing special services or facilities, including:

  • Special travel arrangements to and from the workplace;
  • Specifically designed chairs, desks or work stations;
  • A secretary, reader, or caregiver;
  • An assistant or interpreter;
  • A palliative or therapeutic device; and
  • An auxiliary aid.

This would allow a person who has a disability to perform the work in the same way (or with only minor changes) as a person without a disability. The employer is not required to provide special services or facilities where it can be shown that it is not reasonable to expect the employer to provide those services or facilities.

The employer is only obliged to provide special services or facilities if the person has the relevant academic or other technical qualifications for the position. An employer is not obliged to employ a person with a disability if doing so would compromise the integrity of the employer’s operation.

In one example, the investigatory board found that the employer did not make sufficient inquiries regarding the cost and availability of arrangements that could be made to assist the employee. While the employer claimed that it had done more than other employers would necessarily do, the employer had not fulfilled the requirement of showing that the special services and facilities could not have reasonably been provided.

An employer may discriminate on the basis of a disability where the environment in which the duties are to be performed, or the nature of the duties are such, that a person with a disability or any other person would be exposed to the risk of harm or injury.

However, if the employer can make changes to its activities without causing unreasonable disruption, the employer should do so. In some cases, only minor adjustments, such as reassigning peripheral duties to another employee, need to be made by the employer to employ a person with a disability.

A person with a disability that is applying for a job may not have to disclose their disability depending on the role. Employers should only ask for the information they need to determine an applicant’s suitability for a particular job. If an employer asks questions which go beyond what is necessary for the role, it may be an illegal interview question. For more information about illegal interview questions click here.

Jaenine Badenhorst

Employment lawyer

Wellington