The past 12 months have seen some significant decisions on human rights cases between employers and employees, signalling a new approach to human rights law. Issues such as discrimination and breach of privacy do not arise often, so even experienced managers may not know how to deal with them properly. The best tools for avoiding a costly claim are knowledge of the law and a proactive approach.
The Basics
Human rights law is mostly about non-discrimination and privacy. The Human Rights Act 1993 sets out 13 prohibited grounds of discrimination including race, sex, disability, and religious belief. The Privacy Act 1993 regulates the collection, use and security of personal information.
An employee who believes their human rights or privacy have been unlawfully breached may raise a personal grievance under the Employment Relations Act 2000, or make a complaint under the Human Rights Act. They cannot do both as employers are protected from ‘double jeopardy’.
Recently the human rights path has gained popularity due to the different standards from those used in employment law and possibility of higher compensation.
Higher Standards
The recent case of Meulenbroek v Vision Antenna Systems has made it clear that in cases affecting human rights a higher standard of behaviour is required of employers than the ‘good faith’ standard usually applied in employment law.
Meulenbroek involved an employee whose newfound religious beliefs required him to practice Sabbath on a Saturday, conflicting with his work hours. The Human Rights Review Tribunal (HRRT) stated that an employer must make a “significant, serious and sincere” effort to work around the employee’s religious practice, and awarded $25,000 compensation for failure to meet this standard.
Other recent cases have referred to human rights legislation as a “fundamental law”, confirming that the courts intend to give these cases special treatment.
Higher Awards
The HRRT can make awards of up to $200,000, and has in fact handed out a $168,000 judgment recently. This was the famous ‘cake’ case, Hammond v Credit Union Baywide, in which the employer committed a massive breach of a resigned employee’s privacy after she posted a photo of a cake with words disparaging the employer on facebook.
This judgment showed that where an employment case involves human rights breaches the compensation awarded is likely to be much higher than usual.
What To Do
To protect yourself from human rights law claims it is best to be proactive. Check that your employment agreements and policies comply with human rights and privacy law, and that you have robust procedures for dealing with personal information.
Make sure your managers are properly trained, employees are given information on how to raise a complaint, and that you have a privacy officer if necessary. Take human rights law seriously and be seen taking it seriously!
This article is intended to provide a general guide on this topic. Legal advice should be sought about your specific circumstances.
Carolyn Gardner is a Senior Solicitor in the Employment team at Norris Ward McKinnon. Contact Carolyn at [email protected]
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