One of the interesting things about the law is the way in which something which is ostensibly drafted for one purpose can be often construed for another.
For example, our Human Rights legislation prohibits discrimination in employment on the basis of “disability” – which includes “psychological disability” or “physical disability or impairment”.
We all know what that means in the context of a worker who may be confined to a wheelchair – but what about if a disability is more subtle?
A Court in the United States recently had to consider whether a man who had “shy bladder syndrome” (an inability to urinate in front of others) could be considered to be under a “disability”. Because he could not adequately participate in a workplace drug test, he was unable to get a promotion. He said that the process required of him discriminated against him on the basis of his disability.
Frustratingly, the Court did not reach a concluded decision on the issue – but instead accepted that it should go to a full hearing. In other words, the employee’s argument has not been dismissed.
Could it happen here? There is no reason why not. Our law is, in substance, identical.
It is, of course, relatively commonplace to have an employment agreement which allows an employer to suspend an employee on full pay while an investigation into an allegation of serious misconduct is proceeding.
Since the 1970s New Zealand has had legislation prohibiting gender discrimination in the workplace. But in the vast majority of cases since that time, women have been the claimants. It is, in fact, unusual for a male to succeed in a claim that he has been discriminated against on the basis of his gender.
As the spread of swine flu increases (apparently over 1000 New Zealanders have now been confirmed with the disease) pressure on government health authorities is mounting.
Here’s a suggestion for a good interview question : get a candidate to define “irony”.
