New Zealand: Employment Law Bulletin — [2007] ELB 116
Disability And Discrimination — The Employer’s Duty To Accommodate

As a major proponent and one of the first signatories to the United Nations’ Convention on the Rights of Persons with Disabilities, New Zealand has recognised the need to do more to prohibit discrimination on the basis of disability and to ensure that reasonable accommodation is provided to persons with disabilities in the workplace. Although our domestic law has long provided for these matters, the extent to which it does so is virtually untested.

Discrimination in the employment setting is prohibited by both the Employment Relations Act 2000 ("ERA") and the Human Rights Act 1993 ("HRA"). An employee who is subjected to unjustified treatment by reason of discrimination may pursue a remedy under either Act. A job seeker who is rejected as a result of unlawful discrimination will have to rely on the HRA, no employment relationship having been created.¹

Among the prohibited grounds of discrimination is disability, defined in s 21(1) of the HRA to include: physical and psychiatric illness; physical, intellectual or physiological impairment; any other abnormality of psychological, physiological or anatomical structure or function; reliance on remedial means such as a wheelchair or guide dog, and the presence in the body of organisms capable of causing illness. The definition also contemplates that the affliction will be of a permanent or at least long-term nature.²

The prohibition is not, however, an absolute bar to discriminatory treatment. Section 106 of the ERA imports s 29 of the HRA to provide that nothing in s 104 of the ERA, prohibiting discrimination, prevents different treatment based on disability if either of two situations exists.

The first is where the employment position is such that the person could perform the duties satisfactorily only with the aid of special services or facilities which it is not reasonable to expect the employer to provide.

The second is where the person could only perform them at the risk of causing harm to themselves or others and it is not reasonable either to take the risk or to take measures to reduce it to a normal level.

Section 29 accordingly imposes a duty on employers to accommodate a disabled employee's special needs by providing special services or facilities and/or by taking steps to reduce any associated risk of harm, but only to the extent it is reasonable to expect them to do so.

Just how the reasonableness of an employer’s actions and the circumstances in which different treatment will be justified are to be assessed for these purposes is not at all clear. The Acts themselves provide no guidance as to the factors that should be taken into account and the terms "services" and "facilities" are undefined.

Section 29 has seldom been considered in either the employment or human rights jurisdictions. In particular the extent of the legal obligation to provide special services or facilities, in the absence of risk, has yet to be considered in a reported decision. This is perhaps surprising; given the 413,200 New Zealanders aged 15 to 64 who reported some form of disability in the 2001 census, and indications that half of them required assistance as a result.

An explanation may lie in the mediation model pursued by the Human Rights Commission, which will investigate and settle claims at no cost to the complainant — but other factors are surely at play. It may be that people with disabilities are unaware of any real duty to accommodate their needs, or are simply reluctant to challenge those who discriminate against them. Employers and employees alike may be doubtful that an obligation imposed in such a roundabout manner — as a qualification to an exception to a general prohibition — is even likely to be enforced.

Case law does establish that the risk of harm to the employee will justify discrimination on the basis of disability where that risk is "significant, appreciable or substantial" and it is "not really possible or reasonable" to expect the employer to take the steps that are required to reduce it.³ The acceptable level of risk is accordingly not high, which is consistent with normal health and safety requirements.

When called on to apply the other anti-discrimination provisions of the HRA the courts have consistently referred to the Act's special character and the need to give it a fair, large and liberal interpretation, rather than a literal or technical one. In Director of Human Rights Proceedings v NZ Thoroughbred Racing Inc⁴ the majority of the Court of Appeal held that its savings provisions, being exceptions to the basic prohibitions on discriminatory action, are to be read narrowly. This should be read as requiring a fair, large and liberal interpretation of the employer’s duty to accommodate, which itself serves to narrow the exceptions provided by s 29.

The issues surrounding the duty to accommodate have been and continue to be extensively litigated in other jurisdictions, including the United Kingdom, Canada, the United States of America and Australia. Given the common purpose of human rights law internationally, it may be expected that authorities in those jurisdictions will be of some assistance to the New Zealand courts when called upon to decide whether or not s 29 should be applied in a particular case to excuse discriminatory treatment based on disability.

The United Kingdom’s Disability Discrimination Act 1995 ("DDA") is instructive in that it sets out the factors which must be taken into account when deciding whether or not it is reasonable to expect particular steps to be taken in any case:

1. In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to —

1. the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
2. the extent to which it is practicable for him to take the step;
3. the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;
4. the extent of his financial and other resources;
5. the availability to him of financial or other assistance with respect to taking the step;
6. the nature of his activities and the size of his undertaking;
7. where the step would be taken in relation to a private household, the extent to which taking it would —

1. disrupt that household, or
2. disturb any person residing there.

The Act also provides examples of the kinds of adjustments an employer might reasonably be required to make:

1. The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments —

1. making adjustments to premises;
2. allocating some of the disabled person's duties to another person;transferring him to fill an existing vacancy;
3. altering his hours of working or training;
4. assigning him to a different place of work or training;
5. allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;
6. giving, or arranging for, training or mentoring (whether for the disabled person or any other person);
7. acquiring or modifying equipment;
8. modifying instructions or reference manuals;
9. modifying procedures for testing or assessment;
10. providing a reader or interpreter;
11. providing supervision or other support.

The Act also provides that a breach of the above provisions is not itself actionable, being applicable only for the purpose of determining whether a disabled person has been discriminated against.

Under the DDA the duty to make reasonable adjustments arises in all employment situations where less favourable treatment could arise as a result of a disability. The need then is firstly to establish what accommodation is required by the legal duty and secondly whether, if that was met, there would still be a relevant and substantial reason for treating the disabled person differently to others. As Lord Rodger of Earlsferry put it in the leading case of Archibald v Fife Council:⁵

In that case an employee had become disabled in a way that made it impossible for her to carry out the essential functions of her job as a road sweeper, namely walking and sweeping. After retraining her for an office job and considering (but declining) her applications for suitable vacancies as they arose, the Council eventually dismissed her on the grounds she was unable to perform the duties of her position. Mrs Archibald complained that it should not have made her compete for a suitable office job, which the Council believed it had to do by virtue of other legislation. In its view, her dismissal was the result of her inability to carry out the essential functions of the job she had been hired for, which was not something it could change by making reasonable adjustments. That view prevailed all the way to the House of Lords, which allowed Mrs Archibald’s appeal.

This marks a step beyond the rejection of discrimination per se and towards positive discrimination in favour of the disabled employee. As Baroness Hale of Richmond explained, the law does not regard the differences between able and disabled people as irrelevant in the sense that sex or race is treated as irrelevant when deciding whether someone has been discriminated against on those grounds.

Treating someone more favourably on the basis of their sex or race is prohibited because doing so necessarily discriminates against people of the opposite sex or a different race, who should be treated equally. By contrast, the DDA expects reasonable adjustments to be made to cater for the special needs of disabled people, which necessarily entails an element of more favourable treatment. The question before the House was: when the obligation to make those adjustments arises, and how far it goes?

Their lordships held that Mrs Archibald’s employment contract included, as part of the employer’s arrangements, an implied term that she was liable to be dismissed if she became unable to carry out the essential functions of the job for which she was employed.

The question then became whether that aspect of the employment arrangement placed Mrs Archibald at a substantial disadvantage compared to other employees who were not disabled, but who were subject to the same arrangements. Clearly it did, as they were not unable to do their jobs and hence not liable to be dismissed.

Because the Act imposed a duty to prevent that term of her employment contract from placing her at that substantial disadvantage, the Council may well have been obliged to simply put her into another job that she could do (as a reasonable accommodation), rather than merely giving her the opportunity to apply for it and appointing her if her application was successful. Whether or not that obligation arose would depend on what was reasonable in all the circumstances of the case, which was a matter for the Employment Tribunal to decide.

New Zealand's prohibition of discrimination against disabled persons in the employment setting is expressed in extremely simple terms by comparison to the Disability Discrimination Act 1995 (UK), but many of the complex questions that have arisen under that Act underlie any consideration of discrimination by reason of disability and what should reasonably be expected by way of accommodation.

What is the correct comparator group to be used when deciding whether different treatment has occurred by reason of disability?⁶ This issue is addressed, however, in s 22(1)(c) HRA by its references to "other employees employed on work of that description". Can disadvantage or dismissal by reason of disability be substantively justified even when unreasonable?⁷ Is reasonableness to be assessed from the perspective of the employer, the employee, or on an entirely objective basis?⁸

Although specific legislation may be expected to eventually flow from New Zealand’s acceptance of the United Nations’ Convention on the Rights of Persons with Disabilities, the obligation to give effect to its purposes already exists. Given the breadth of the definition of disability in the HRA, it is perhaps surprising that the duty to accommodate disabled employees remains so unexplored.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.