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Employment: Access to jobs and protection against discrimination

Applying for jobs: What you do and don’t have to say about your impairment

What questions can an employer ask me about my impairments? And what do I have to tell them in response?

Human Rights Act 1993, s 23 Case: WC 50/02 Employment Court

When you’re applying for a job, employers are allowed to ask you if you have any medical problems or impairments that could affect whether you can do the job to a satisfactory standard – for example, “Do you have any medical problems or disabilities that could affect your ability to do the job?”

You have to answer those questions honestly. But (as the second case example below shows) you don’t have to answer questions on the basis of an unlikely, worst-case scenario.

Employers can’t ask you in blanket terms whether you have any medical problems or impairments at all. This is because it’s illegal to ask questions that indicate, or could reasonably be understood as indicating, an intention to discriminate against you on the grounds of disability.

Example: “Do you have any medical problems of any kind?”

Case: WC 50/02 Employment Court

Employers can’t ask wide-open questions like this about possible medical conditions or impairments. This issue was discussed fully by the Employment Court in a case from 2002.

When “A” had originally applied for her job, the application form asked, “Do you have any medical problems of any kind?”. She wrote down that she had a disease affecting her right hip joint, but she didn’t include that she had irritable bowel syndrome (IBS) and a precancerous condition called leukoplakia.

The employer was very happy with her in the first five months, during which she had three days off work (for unrelated problems). But then she had some serious stomach pain and had to take sick leave several times, including for doctor and hospital visits.

The employer called her into a meeting where the employer and their lawyer focused in particular on her IBS and leukoplakia and the fact that she hadn’t mentioned them on her job application form. After the meeting they fired her, claiming she’d misrepresented her medical status when she applied for the job.

She took the employer to the Employment Relations Authority, claiming this was an unjustified dismissal, and she won. The employer appealed to the Employment Court (the next level up), who again decided in favour of A, the worker.

The employer’s questions must relate to your ability to do the job

Employers are allowed to ask job applicants about things that could affect their ability to do the job satisfactorily – but they have to make sure they do this in a way that doesn’t breach the anti-discrimination laws. Asking a really broad question like “Do you have any medical problems of any kind?” could reasonably be taken as showing that the employer intended to discriminate against any person with an impairment, and that’s illegal under the Human Rights Act (ss 22, 29).

The judge said that if the employer had asked the question in a narrower way then that narrower question could “conceivably” have been OK – for example, if the employer had been trying to work out exactly what kind of adjustments might be needed in the workplace. But that’s not what the employer did.

Since it was against the law for the employer to ask this very broad question, A didn’t have to fully reveal all her medical conditions, and so she couldn’t be fired or disadvantaged by the employer for not answering it fully.

And some more reasons why the employer lost

The employer’s claim also failed because the employer hadn’t shown to the necessary standard of proof in employment cases (known as the “balance of probabilities”) that A’s leukoplakia and IBS had had a serious impact on her work.

Also, the employer’s right to fire A for any misrepresentation of her medical status relies on the general rule about cancelling contracts for misrepresentation. Under that rule, the employer would only have been able to cancel the employment contract if the two sides had agreed – either explicitly or implicitly – that A’s revealing all her medical conditions was “essential” to the employment agreement. So that was yet another reason why the employer failed in their argument that it was fair to fire her.

The judge also said the employer had breached the Privacy Act (Principle 1) because they hadn’t explained on the application form why they wanted the information. For more information about privacy rules, see: “Privacy and information”.

Example: Employer claimed that worker with epilepsy hadn’t been honest when applying for the job

Case: [2015] NZERA Christchurch 14

The Employment Relations Authority (ERA) decided a worker with epilepsy had been wrongly dismissed. The ERA rejected the employer’s claim that the worker hadn’t been honest about how much her epilepsy would affect her work when he’d asked her this at her interview. She’d told the employer, accurately, that her seizures were usually at night, very seldom during the day.

She’d started on 4 November and finished on 4 February the following year, when she’d been unjustifiably dismissed because of her condition. She’d had two seizures during the day, one during November and the second on 3 February.

The ERA said she hadn’t been dishonest – her condition was hard to predict, and she’d given her opinion honestly based on her previous work experience with her epilepsy.

One of the employer’s arguments to the ERA was that he’d acted in good faith by giving the employee work despite her epilepsy, and so he shouldn’t now be disadvantaged by the ERA allowing her claim against him. In response to this, the Employment Relations Authority said:

“… it is not the case that the law holds employers who employ people with health issues or disabilities to a lesser standard than other employers. The same test of whether a dismissal was justifiable or not must be applied [here] as to any employer.”

What if the employer doesn’t ask me any questions about disability? Do I have to volunteer information about an invisible impairment?

Case: Employment Court Wellington WEC 5/96

When you’re applying for a job, you have to answer honestly and accurately any questions you’re asked that are relevant to your ability to do the job. But if you’re not asked anything about relevant health conditions or impairments, you don’t have to volunteer any information about this.

So if an impairment or condition that you didn’t mention – a mental illness for example – does turn out to affect your ability to do the job, then the employer would have to deal with this as a performance issue, rather than as an issue about dishonesty when you applied for the job. This means they would have to give you a chance to improve, offering training or other support, and so on. They can’t fire you or otherwise discipline you for not telling them about the impairment.

Note: Deaf Aotearoa has a guide to employment for Deaf and hard of hearing people available here: deaf.org.nz/services/employment

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Disability rights

Where to go for more support

Community Law

Your local Community Law Centre can provide you with free initial legal advice.

Find your local Community Law Centre online: www.communitylaw.org.nz/our-law-centres

Auckland Disability Law (ADL) provides free legal services to disabled people associated with their disability related legal issues. ADL is the only specialist disability law community law centre in Aotearoa New Zealand.

Website: www.aucklanddisabilitylaw.org.nz/
Email: info@adl.org.nz
Phone:  09 257 5140
Text only: 027 457 5140

Disabled Persons Assembly

DPA is a pan-disability organisation run by and for disabled people. DPA and its members work with the wider disability community, other disabled persons’ organisations, government agencies, service providers, international disability organisations and the public.

Website: www.dpa.org.nz
Email: info@adl.org.nz
Phone:  04 801 9100
Facebook: www.facebook.com/dpa.nz.7

Nationwide Health & Disability Advocacy Service

The Nationwide Health & Disability Advocacy Service offers free, independent, and confidential advice to support you in resolving issues with health and disability services.

Website: www.advocacy.org.nz
Email: advocacy@advocacy.org.nz
Phone:  0800 555 050

Le Va

Le Va is working with Manatū Hauora/Ministry of Health to support Pasifika people with disabilities and their families.

Website: www.leva.co.nz/our-work/disability-support
Email: admin@leva.co.nz
Phone:  09 261 4390
Instagram: www.instagram.com/Levapasifika
Facebook:  www.facebook.com/LeVaPasifika

Te Rōpū Taurima

Te Rōpū Taurima is a kaupapa Māori service that supports people of all ethnicities with intellectual impairments around New Zealand.

Website: www.terooputaurima.org.nz
Email: info@terooputaurima.org.nz

People First New Zealand

People First New Zealand is a self-advocacy organisation that is led and directed by people with learning disabilities.

Website: www.peoplefirst.org.nz
Email: ask@peoplefirst.org.nz
Phone:  0800 20 60 70

Deaf Aotearoa

Deaf Aotearoa is a national organisation representing the voice of Deaf people, and the national service provider for Deaf people in New Zealand.

Website: www.deaf.org.nz
Email: hello@deaf.org.nz
Phone:  0800 33 23 22
Freetext:  8223
Instagram: www.instagram.com/DeafAotearoa
Facebook: www.facebook.com/deafaotearoanz

Blind Low Vision NZ (previously called Blind Foundation)

Blind Low Vision NZ is New Zealand’s main provider of support to New Zealanders who are blind or have low vision.

Website: www.blindlowvision.org.nz
Email: generalenquiries@blindlowvision.org.nz
Phone:  0800 24 33 33
Instagram: www.instagram.com/BlindLowVisionNZ
Facebook:  www.facebook.com/BlindLowVisionNZ

Sign Language video about the courts and justice



Achieve is a national network established to ensure equal opportunity and access to post-secondary education and training for people with impairments.

Website: www.achieve.org.nz
Email: info@achieve.org.nz
Phone:  03 479 8235

Inclusive Education

Inclusive Education provides New Zealand educators with practical strategies, suggestions and resources to support the diverse needs of all learners.

Website: www.inclusive.tki.org.nz
Email: inclusive@tki.org.nz

Government Agencies

Whaikaha/Ministry for Disabled

Whaikaha is the Ministry for Disabled People. On the website, it contains information about how to access support and funding and has a directory of advisory services.

Website: www.whaikaha.govt.nz
Email: contact@whaikaha.govt.nz
Phone:  0800 566 601
Text: 4206
Communication can also be made through NZ Relay Calls

Health and Disability Commissioner

The Health and Disability Commissioner website sets out your rights under the Code of Health and Disability Services Consumers’ Rights and how you can make a complaint to the Commissioner.

Website: www.hdc.org.nz
Email: hdc@hdc.org.nz
Phone:  0800 11 22 33

To make a complaint online: www.hdc.org.nz/making-a-complaint/make-a-complaint-to-hdc

Office for Disabled

The Office for Disabled is administered by a small team from Whaikaha, and works closely with government agencies and the disability sector to make the best decisions for disabled people.

Website: www.odi.govt.nz
Email: office_for_disability_issues@whaikaha.govt.nz
Phone:  0800 566 601

Ministry of Health Services and Support

Website: www.health.govt.nz/your-health/services-and-support

Te Kāhui Tika Tangata/Human Rights Commission

The Human Rights Commission website provides information about human rights in Aotearoa and outlines how you can make a complaint to the Commission about individual or systemic disability discrimination.

Website: www.tikatangata.org.nz/ or www.hrc.co.nz
Email: infoline@hrc.co.nz
Phone:  0800 496 877 (0800 4 YOUR RIGHTS)

To make a complaint online, download a complaint form or find out more about the complaints process: www.tikatangata.org.nz/resources-and-support/make-a-complaint

Privacy Commissioner

The Privacy Commissioner website provides information about your rights and responsibilities under the Privacy Act 2020 and the Privacy Principles. It also outlines the role of the Privacy Commissioner and how to make a privacy complaint.

Website: www.privacy.org.nz
Email: enquiries@privacy.org.nz
Phone:  0800 803 909

To make a complaint: www.privacy.org.nz/your-rights/making-a-complaint

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