Are your HR processes protecting employees against discrimination?

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A Napier caregiver who has accused his former employer of failing to protect him against workplace discrimination is taking his case to the Employment Relations Authority (ERA). HRM Online talked to employment lawyers, Charles McGuinness and Gretchen Stone, about the implications of the case for HR.

Although normally private about his sexual orientation, the employee acknowledged being homosexual when asked by a colleague, Business Day reported this week. Six months later, he discovered that someone had informed his clients and some of them reacted very badly, he claimed. His relationships with these clients severely deteriorated, and he quit his job.

The employee then approached his district manager and lodged a complaint about his colleague but, when nothing was done, he resigned. His lawyer said that his client had attended mediation with his colleague, but that his former employer made no offer to settle and refused to proceed with mediation.

 The case must be a personal grievance one, since he has gone to the ERA, and, presumably, one of constructive dismissal, in which the employee claims that they had no other choice but to quit, Gretchen Stone from Harrison Stone said.

Charles McGuiness, from Cullen Law, agreed. “I imagine that he’ll be claiming a constructive dismissal, but that’s speculation on my part,” he said.

Under the Employment Relations Act discrimination in the workplace on the basis of sexual orientation is prohibited. The harassment may be direct or indirect, it may be ‘unwelcome’ or ‘offensive’, and it must have a ‘detrimental effect’ on the employee’s employment, performance, or job satisfaction. Importantly, the act states that harassment may come from a client.  

A situation like this one would generally be guided by the organisation’s policies, and the employer is generally contractually obliged to comply with its policies, McGuiness said. “Many organisations have an equal opportunities policy, to ensure that everyone is treated equally, and there will often be an HR person that employees can go to,” he said.

At the least, an employer is required to investigate, McGuinness continued. “I think that in any instance where there is an allegation of discrimination, harassment or bullying sort of behaviour, an employer has an obligation to enquire into that allegation.”

Stone agreed that employers have an obligation to protect against discrimination.  

If, in this case, the employer had such a policy in place, and did nothing – as stated in the Business Day article – then they could be in trouble.

“Even if there is no policy, there is an implied obligation to keep the employee safe in the workplace – and if this employee is suffering harassment or mental stress then that is potentially a breach,” McGuinness commented.

“They could have breached their obligations to that employee and the employee would therefore have a claim of unjustified disadvantage or possibly breach of contract. If the breaches are so severe that the employee had no option but to resign, and it was foreseeable to the employer that he would resign, that is potentially a constructive dismissal,” McGuinness said. However, there is a high threshold to prove constructive dismissal, he added. 

An employee in White’s position might be able to make a claim under the Health and Safety in Employment Act, Stone said. “You’ve got a duty to ensure that you’re employees are safe and healthy in the workplace…to protect them from hazards – and stress is a hazard.”  However, she has not come across a case involving sexual orientation.

Key points for HR:

 

  • The Employment Relations Act prohibits discrimination, which includes sexual orientation. Workplace discrimination on the ground of sexual orientation is also prohibited under the Human Rights Act.
  • An organisation with an equal opportunities policy is contractually obliged to comply with that policy.
  • If an employee complains about an incident of discrimination, the employer is legally required to investigate.
  • If an employer breaches their obligations an employee may have a claim of unjustified disadvantage, breach of contract, or, potentially, constructive dismissal.
  • An employee who has suffered discrimination causing stress may also be able to make a claim under the Health and Safety Employment Act.

 

Related story: Workplace gender discrimination still rife

 

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