What questions are OK to ask employees?
Within hours of her elevation to Leader of the Labour Party, Jacinda Ardern's appointment has given rise to an interesting employment issue: What questions are OK to ask employees or potential employees?
The Employment Relations Act 2000 and the Human Rights Act 1993 protect individuals from unlawful discrimination in employment. The Human Rights Act also applies to job applicants. This legislation makes it unlawful for an employer (or potential employer) to ask questions that could reasonably be understood as indicating an intention to unlawfully discriminate.
What is unlawful discrimination?
It is unlawful to discriminate (ie treat people differently) in relation to employment on the following grounds:
- sex/gender (including pregnancy and childbirth)
- marital status
- religious belief
- colour or race
- ethnic or national origins (including citizenship)
- disability (including illness or injury, whether physical or mental)
- political opinion
- employment status
- family status
- sexual orientation.
In short, you cannot ask questions about any of the grounds above, unless you have a legitimate (non-discriminatory) reason for the question, or you fall within a limited exception. So – you can ask if someone's had a back injury if you're looking at promoting them to a job requiring a lot of heavy lifting, but not for a desk bound employee.
Common questions to be wary of include:
- Are you planning on having children? (Note that this could also be discriminatory if asked of a man, given discrimination on the basis of family status is prohibited.)
- How old are you?
- How much do you weigh?
- Would you have voted for Donald Trump?
- Have you ever had any health issues?
- What holidays do you celebrate?
- What does your spouse think about your career?
- Where were you born?
Care should be taken at interviews and in the workplace to ensure that only questions relevant to the job are being asked, and questions that suggest an intention to unlawfully discriminate are avoided. An employer can, however, "discriminate" on a basis other than the prohibited grounds. So it's fine to ask if an individual has any criminal convictions or has ever been arrested.
The Human Rights Act also prohibits indirect discrimination. Indirect discrimination occurs when a practice applies to all individuals in the same way, but has a different effect on certain groups. For example, requiring that all front of house employees wear a company hat, meaning they cannot wear a turban or hijab. This means that you should not ask female job applicants if they are planning on taking any extended periods of leave in the next few years.
Employers should also be mindful of their obligations under the Privacy Act – which applies to both employees and job applicants.
The Privacy Act requires that an organisation may only collect information for a lawful purpose connected with a function of the business. So, any questions you ask employees or job applicants must be connected to your business or the individual's employment. This means employers should steer clear of questions like, "have you ever had any medical problems of any kind?". This would involve the collection of more information than required for employment purposes (and, as above, could give rise to discrimination).
What happens if you get it wrong?
Asking a question that suggests an intention to discriminate could lead to a complaint to the Human Rights Commission, the Privacy Commissioner, or a personal grievance for unjustified disadvantage being raised under the Employment Relations Act. In order to have success with a complaint under the Human Rights Act or the Employment Relations Act, the employee would need to establish they had been treated unfairly as a consequence of the answer (or refusal to answer the question). However, under the Privacy Act, the question alone is a breach.
Potential remedies include compensation, orders for compliance and penalties.
Please feel free to get in touch with a member of the team if you would like to discuss any of these issues in more detail.
This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.