Workplace Wellbeing Guide 7: The Human Rights Act 1993

View Guide as a PDF: Guide+7

The Human Rights Act is an important piece of legislation that sector organisations need to be familiar with. It covers a broad range of situations including employment and pre-employment, and has important implications for organisations that work with volunteers.

The Human Rights Act 1993 prohibits discrimination on certain grounds, including in employment and pre-employment. It is illegal to discriminate against someone because of their gender, marital or family status, religious or ethical beliefs colour, race or ethnic or national origin, disability including physical or mental, age, political opinion, employment status, or sexual orientation.

The Human Rights Act also protects people from sexual and racial harassment – this includes job applicants, interns, placements, employees, contractors and volunteers. An employee who has been discriminated against or harassed has the option of either taking a personal grievance under the Employment Relations Act or raise the issue with the Human RightsCommission (see disputes resolution process, below).

Fair Employment Practices under the Human Rights Act

Employers cannot discriminate against applicants oremployees by:

• Refusing to employ
• Refusing equal pay
• Offering less favourable conditions, training opportunities, promotion or transfer, or fringe benefits
• Dismissing
• Retiring.

Employers may also be held responsible for unlawful discrimination by employees, contractors and volunteers.

However employers will not be liable if they have implemented a suitable discrimination and harassment prevention programme – even if something does go wrong later. This is known as the ‘good practice defence’.

Disputes Resolution Process

The Human Rights Commission has a disputes resolution process which assists people to resolve issues and complaints by mediation. If mediation has not been successful an individual can raise their complaint with the Office of Human Rights Proceedings, which can present cases at the Human Rights Review Tribunal, or an individual can go directly to the Tribunal.

In order to make a complaint:

• The complaint must be based on one of the ‘grounds’ for discrimination under the Act
• It must fall within one of the areas covered by the Act (such as pre-employment or employment)
• The complainant must have experienced some form of negative impact or disadvantage.

When dealing with a case, the Commission will apply criteria of natural justice – i.e., it will consider who has complained, the nature ofthe complaint, and provide an organisation with the chance to respond. An organisation may refuse to go to mediation, in which case complainants can raise the issue with the Human Rights Review Tribunal.

For example, if a complaint is raised with the Commission, an organisation must comply with all processes within specific time limits.These processes include:

• Acknowledging the complaint to the complainant within five working days
• Keeping in touch with the complainant about the progress of the complaint
• Advising complainants of any appeal procedures the organisation has in place
• Forwarding to the Commissioner’s office any complaint the organisation receives that is addressed directly to the Commissioner.

Equal Employment Opportunities (EEO)

Equal Employment Opportunities (EEO) means eliminating barriers to ensure that all employees are considered for the employment of their choice and have the chance to perform to their maximum potential. EEO practices include fairness at work, hiring based on merit, and promotion based on talent. It concerns all aspects of employment including recruitment, pay and other rewards, career development and work conditions.

EEO strategies and sound HR practices enable employers to recruit the very best people from the diverse population, making the most oftheir skills, creativity and energy. Initiatives that encourage work-life balance are an important part of EEO as they enable people to perform to their full potential while still accommodating their commitments outside of work.

EEO practices are a powerful way to increase efficiency, effectiveness and productivity. By supporting merit-based management, organisations are better placed to recruit, retain and motivate the people they need to be successful.

An inclusive workplace motivates employees to perform to thebest of their ability and to fully utilise their skills. It promotes understanding between people, creating a stronger and more focused team. And it enables people to balance their lives outside work with their responsibilities at work so they can be focused and creative in all spheres of their lives.

The Human Rights Act and Volunteers

Under the Human Rights Act, ’employees’ can mean voluntary workers as well as applicants, paid employees or contract workers.

Therefore, volunteer roles need to be developed and managed with as much consideration for due process as is applied to the recruitment and employment of paid staff.

Building Positive and Productive Work Environments – AChecklist

Does your organisation have:

• A positive workplace environment policy which outlines procedures for dealing with discrimination, harassment, and bullying – and practices that support this?
• A process for dealing with any complaints?
• A contact person for human rights issues?
• Discrimination, harassment and bullying prevention training for managers, staff, governance and volunteers?
• The work environment assessed against possible risk

Resources

• Guide 13 – Managing Employment Relationship Problems
• Guide 14 – Mediation

Information

• www.eeotrust.org.nz – Equal Employment Opportunities Trust website. Workplace EEO toolkits can be downloaded from this website. Sector organisations can also join the EEO Employers Group.
• www.hrc.co.nz – Human Rights Commission website – contains general information on promoting positive and productive workplaces and avoiding discrimination and harassment, as well as specific information on issues such as victimisation, discrimination in advertising and recent changes to human rights legislation in New Zealand.