March 2023

Discrimination is a reality for disabled people. The Human Rights Act 1993 and the Employment Relations Act 2000 are two key statutes which cover discrimination in employment.

The Human Rights Act does not define discrimination, but rather it lists prohibited grounds of discrimination, for example disability, which means physical disability or impairments, physical illness, psychiatric illness etc. and makes it unlawful to discriminate on these grounds in employment. The Employment Relations Act repeats the prohibited grounds found in the Human Rights Act. There is also an important legislative overlay in the Employment Relations Act which requires parties to an employment relationship to act in good faith towards each other. This includes the obligation not to mislead or deceive.

Despite the protections in legislation, many people with disabilities experience discrimination or face multiple disadvantages which affect their job prospects, quality of life, and mental health. We all know (or should know) that there is no excuse for discrimination. Although good strides have been made in expanding the opportunities for people living with disabilities, there is still some distance to travel to reach true equity.

Some employers discriminate against people with disabilities through unfair recruitment practices, for example including physical requirements for a role that might not actually be necessary such as an office-based role. Obviously, there are some jobs where certain disabilities will genuinely disqualify a candidate from the job, but these are few and employers should ‘think outside the box’ about how accommodations can make the role work.

So, what can an employer rightfully ask a job candidate about any health conditions, including long-term health conditions, or disabilities that could affect their ability to do the job to a satisfactory standard? It is acknowledged that employers can legitimately ask job candidates for health information. For example, some employers offer health insurance or superannuation schemes as part of an employment package and employees are regularly asked to complete proposals detailing their own health history and those of other family members covered by the policy. Prospective employees are required to answer those questions in good faith; however, employers cannot ask broad questions about whether the candidate has any health problems or impairments. It’s simply unlawful to ask questions that indicate or could be reasonably understood as indicating an intention to discriminate against the candidate on the ground of disability. The processes used by employers to gather information including health information must be lawful and must not be discriminatory in terms of the Human Rights Act.

People living with disability already feel at a disadvantage when seeking employment. The challenge of overcoming (ill-informed) assumptions about performance and productivity are even more complicated for people with disabilities, whether physical or mental. They have an equal right to live in a world that is inclusive, accepts who they are, and respects who they are. Employers need to be aware of their obligations and cannot engage in conduct which discriminates against workers or potential workers living with disabilities.