Discrimination and harassment — should employees use the Employment Relations Act or the Human Rights Act?

Where an employee has been the victim of harassment or discrimination, they can choose to pursue a complaint under the Employment Relations Act (“the ERA”) or the Human Rights Act (“the HRA”). An employee cannot do both, and must therefore decide which route is best to follow.

Although the definitions of ‘discrimination’ and ‘harassment’ are very similar in both the ERA and the HRA, there are minor differences which may be significant in specific situations. These differences will need to be determined on the facts of each scenario.

The key difference between the ERA and the HRA is that the ERA only applies to employees, being “any person of any age employed by an employer to do any work for hire or reward under a contract of service”.

Conversely, the HRA can be used by employees, and anyone else who has been a victim of discrimination or harassment, including someone who applied for a position and was unsuccessful due to discrimination.

The choice of remedies available under each jurisdiction are also different.

Remedies under the HRA include a declaration that an act is illegal; an order to not continue or repeat certain conduct; and a declaration that a contract is illegal and relief in accordance with the Contract and Commercial Law Act. The HRA can also result in an order for training or attendance at another programme; or an order to implement a specific policy or programme.

Under the ERA there can only be a recommendation, rather than an order, setting out what should happen to the offender, and also what the employer could do to prevent similar incidents in the future. Other remedies under the ERA include reinstatement, which is not available under the HRA.

Both jurisdictions can result in compensation for loss of money or a benefit; and compensation for humiliation, loss of dignity and injury to feelings. The amounts awarded under each jurisdiction have been very different. Under the HRA monetary awards are limited to $200,000, but there is no such statutory limit set down under the ERA.

Under the ERA, compensation for hurt and humiliation depends on the classification of the employer’s actions. There are 3 bands:

• Low: $0 — 10,000.00;

• Medium: $10,000.00 — $50,000.00; and

• High: $50,000.00 and above.

The Employment Court recently commented that $80,000.00 would likely be the upper limit to any award.

Unfortunately, HRA cases tend to take much longer to be resolved due to the backlog of cases in that tribunal.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.