Mental Disability and Discrimination in Employment Under New Zealand's Human Rights Act 1993

Abstract

The New Zealand Human Rights Act 1993 (HRA) prohibits discrimination in employment on the ground of disability, which includes mental illness. However, what is unclear is, if an employee develops a mental illness during employment and their performance is compromised, to what extent does the legislation require the employer to accommodate (or tolerate) this poor performance. The question arises — if an employee could otherwise be justifiably dismissed for poor performance, would this nevertheless be discrimination if the poor performance was due to a mental illness? To answer this question this thesis examines the discrimination in employment provisions of the HRA, seeking to clarify the obligations and prerogatives of the employer, and the rights of the disabled employee. In addition, this thesis critically evaluates the content of the legislation in light of New Zealand’s obligations under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Finding that there is a lack of case law relating to disability discrimination (that might otherwise clarify the law in this area), this thesis uses the ‘spiral approach’ to interpretation to analyse the relevant provisions. This analysis exposes several interpretive issues within the current legislation for disability discrimination, and reveals that the legislation may not be sufficient to ensure New Zealand is meeting its obligations under the UNCRPD. These interpretive issues arise as key terms in the legislation are not defined, and because of the inherent ambiguity and complexity of the individual provisions. Consequently, it is unclear when a disabled employee might still be ‘qualified’ for their position, or when their adverse treatment (such as dismissal) might be by reason of their disability, rather than due to poor performance alone. This research also suggests that New Zealand is not meeting its obligations under the UNCRPD to ensure reasonable accommodation of disability is provided in employment. Instead, the so-called ‘reasonable accommodation’ provisions of the HRA merely provide a defence against a claim of discrimination, and any obligation of reasonable accommodation is only inferred from this defence. Furthermore, despite the purpose of the HRA being to better protect human rights ‘in general accordance’ with United Nations Conventions on human rights, it is difficult to interpret the HRA in accordance with the UNCRPD. This thesis argues that this is because the HRA is premised on a medical model of disability, and on the idea of formal equality, whereas the UNCRPD is premised on a mixed medical-social model of disability and aims to achieve substantive equality for those with disabilities. As a consequence, even with the best possible interpretation of the provisions, the lack of a positive duty to accommodate the disabled employee, the emphasis on formal rather than substantive equality, and the failure to utilise the social model of disability, means New Zealand legislation provides inadequate protection against discrimination in employment on the ground of mental disability. Therefore, this thesis suggests that the HRA should be amended to clarify the law for disability discrimination in New Zealand, and proposes a series of changes that might be made to achieve this. Ultimately, this thesis contends that New Zealand’s current model of law is inappropriate for disability discrimination, and contends that a new social model of disability discrimination law is required to provide better employment protection for those with disabilities.