Red Fish, Blue Fish

Discrimination and disparity - consistency is key.

The King of Pop, Michael Jackson, sang, “It don’t matter if you’re black or white”. In the eyes of the law, Jackson was exactly right, and his message should resonate with employers in terms of the expectation of consistency of treatment. That is, employers should ensure that employees are treated the same, regardless of the colour of their skin. That is just one of the ways in which the law seeks to protect us from discrimination.

Everyone knows, or should know, that it is illegal to discriminate against an employee by reason of any of the 13 prohibited grounds of discrimination as set out in the Human Rights Act 1993. This means that it is unlawful for an employer to offer an employee less favourable terms of employment, conditions, benefits and opportunities for training or promotion or to dismiss, retire or subject an employee to any other detriment, by reason of any of the prohibited grounds.

In practical terms, this means that you cannot refuse to hire someone based on their age, sex or marital status (among other things), or dismiss them for being pregnant, gay, or turning 40, unless certain and very limited exceptions apply. That said, in practical terms, there are also many other reasons an employer can come up with, for not hiring a particular candidate, to ensure they don’t fall foul of that legislation.

So, while there is certainly some employment-related discrimination case law in New Zealand, the reality is that the bulk of discrimination case law comes from the United Kingdom and America, where the laws are different from those in New Zealand and other courses of action are less readily available (so discrimination is pursued instead). For example, in New Zealand, an employer can only lawfully terminate employment where the termination is what a fair and reasonable employer would have done, in all the circumstances, at the time the decision to dismiss was made (s103A Employment Relations Act 2000). In America by comparison, an employee can be fired ‘at will’ (without cause) and therefore, may need to pursue discrimination as a course of action in order to have some avenue to sue for their dismissal.

It is perhaps for that reason that arguments relating to disparity of treatment are raised more commonly than allegations of discrimination in New Zealand. Which in turn raises the question – what is the difference between discrimination and disparity of treatment?

Put simply, discrimination relates to the prohibited grounds of discrimination whereas disparity of treatment is much broader and relates to the old saying about comparing apples with apples. Assuming your employees are apples, all apples in your workplace must be treated consistently or a disparity of treatment argument may arise. However, that does not mean apples must be treated the same as oranges – there may be a genuine and justifiable reason for treating the oranges differently.

Disparity of treatment is usually raised as part of other causes of action (most commonly constructive dismissal, unjustified dismissal and unjustified disadvantage). The argument is that the treatment of the employee is out of line with the manner in which their colleagues have been treated. That, of course, inherently goes to the reasonableness of the treatment – it is logically much harder to argue that the treatment of employees is fair and reasonable given the circumstances if it is not the same across the board. If different treatment is appropriate, for whatever reason, the trick is to ensure the different treatment and the rationale behind it is objectively reasonable and able to be explained and justified, if challenged.

Like all areas of employment law, it will be a question of fact in each case as to whether an employer’s treatment of a particular employee is reasonable, given the circumstances. Employer’s interests will be best served by ensuring firstly, that their expectations of staff are clear and consistent and, secondly, that enforcement of those expectations is equally consistent. Employers must ensure that they do not unlawfully discriminate but, more than that, they must also ensure that they treat their employees in a consistent manner to avoid disparity arguments arising. Words to remember in the workplace if you don’t want to end up in the words of another Michael Jackson song title – ‘Who’s bad?’

Bridget Smith
Senior Associate, Minter Ellison Rudd Watts
www.minterellison.co.nz