Don’t sack someone because they are pregnant. It should be obvious, but some employers still seem to ignore such basic rules, to their significant financial peril. Eventually.

Pregnant workers in New Zealand are protected by three main pieces of legislation – the Employment Relations Act, the Human Rights Act and the Parental Leave and Employment Act. All three acts provide protections for pregnant workers – the first two in the form of anti-discrimination rules, the latter by setting rules around taking parental leave and protecting the employee’s right to return to work.

A worker who claims to have been unlawfully discriminated against can choose to bring a claim either under the Human Rights Act or the Employment Relations Act, but not both.

Typically, workers will bring their claims under the Employment Relations Act, because it means other non-discrimination claims can be dealt with at the same time. It is also typically a quicker process, although the wait can still be much longer than is ideal. Read more

Restructures and potential impact on mental health .... This recent ACC case may provide further redress for employees: 

While restructures in our workplaces are often categorised by our courts as being part of management’s prerogative, employers should be mindful that it does have an impact on their employees.

Losing your job may be one of the most stressful things a person may experience. It may lower self esteem and worthiness. It may cause financial turmoil. It may effect family and loved ones. And it may effect a workers health, sometimes significantly.

Ironically, the effect on the health of an ex-Accident Compensation Corporation employee was so significant that she appealed ACC’s decision not to accept her work-related mental injury in the Wellington District Court.

Ms Phillips was employed by ACC for about six years. Originally based in Whangarei, when her dream job came up in Christchurch, she successfully applied for it. Ms Phillips, her husband and two teenage daughters sold up and moved to Christchurch in 2017.

In 2019 ACC underwent a significant restructure. Ms Phillips’ position was disestablished and she was required to apply for alternative roles or face redundancy.

The medical evidence concluded that during the redeployment phase that Ms Phillips’ mental health was severely effected. The first instance arose when Ms Phillips raised her concerns about ACC failing to fulfil its obligations to her while she was in the “redeployment pool”. Her manager requested a meeting with her and a HR Representative. The meeting was said to be confrontational and aggressive. Ms Phillips says that she was not shown any support by her manager, instead the manager made it clear she was to stop pursuing her grievance. She left the meeting in tears and was extremely distressed. She consulted her doctor and was placed on stress leave.

Later, Ms Phillips accepted a lesser role that was two bands below her disestablished position. She was placed at 110% of the remuneration banding and was told that it was the maximum allowable in accordance with ACC policy. Ms Phillips shortly after found out that a colleague had been moved to a lower band but was offered 119% of salary to align her old and new pay. Ms Phillips asked to be treated similarly, but her request was declined. She consulted her doctor and was again advised to take stress leave.

There followed a further incident where Ms Phillips tried to return to the workplace to email an updated medical certificate to her manager from her work laptop. There she was confronted by her new team leader and the assistant Branch Manager and humiliated and demeaned in front of about 20 other staff.

Ms Phillips was diagnosed with acute stress reaction, depression and post traumatic symptoms. This was confirmed in a later report by another psychiatrist.

In coming to his decision, the District Court Judge accepted that Ms Phillips had an identifiable mental injury, and that the injury was caused by a series of events, the most notable being the meeting when she sought to understand the redeployment process with her manager. The Judge said that the test is whether or not people generally in Ms Phillips’s position would suffer mental injury in the way she did. He concluded that the answer was yes: people generally who had uprooted family from Whangarei to pursue a dream job in Christchurch would suffer mental injury from the events Ms Phillips went through.

The decision means that Ms Phillips can get financial support through ACC and the therapy she needs to help recover.

Successful claims for work-related mental injuries are not common. ACC says that it accepted 81 claims for work-related mental injuries last year, but it could not easily identify how many of those related to workplace bullying.

Claims for compensation for “humiliation, loss of dignity and injury to feelings” are a common form of remedy sought in personal grievance claims in the Employment Relations Authority. In redundancy situations, compensation awards tend to be at the lower end of the scale for the manner of the dismissal, rather than compensation for the shock and injury to feelings for losing the job. Egregious behaviour on behalf of the employer will usually significantly increase this.

Whatever jurisdiction a worker seeks redress in, they will need to establish solid evidence of their injury and its impact on them. Given that it should be clear that the loss of a job will be a significant and a potentially damaging event in a workers life, it is important that they are treated respectfully and fairly.

Ms Phillips’ case may make it easier for workers to pursue a further avenue of redress if their mental health is significantly damaged in the workplace.

David Burton is an employment law barrister and can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..

The case of Takamore v Clarke is not well known in employment law circles. But, this Supreme Court decision has laid the foundation for greater implementation of tikangaMāori in New Zealand’s legal system.  The case concerned tensions between the application of the common law relating to burial and the application of tikanga Māori, but it is far reaching in its comments on the country’s legal development.  More ...

We have been learning daily about the development of successful vaccines to prevent coronavirus.

What are the obligations of employers when the vaccine arrives?

The United States, Australia, as well as about half of European countries have various forms of quasi-mandatory vaccination requirements.

In the US, vaccine mandates are often implemented by requiring proof of vaccination or of an acceptable exemption at school entry.

In Australia, many states have school entry requirements. Sometimes this goes to denying childcare benefits to vaccine refusers who do not have acceptable exemptions. Many families cannot afford to survive without these benefits. Non-medical exemptions have been eliminated in Australia.

With the elimination of diseases such as measles, some people have turned their fear to the vaccines themselves. Despite a really high safety record, vaccines are not perfect and concerns can remain.

A dictatorial approach of forcing vaccinations on people can always backfire.

In the city of Leicester, 150 years ago, 20,000 anti-vaxxers and libertarians protested a smallpox vaccine – a very large number for those days. The United Kingdom ultimately restored a non-medical conscientious objection.

In 2012, the European Court on Human Rights heard a case brought by Ukrainian Sergey Solomakhin.

He opposed his having been vaccinated against diphtheria in November 1998. It was compulsory in the Ukraine at the time due to an epidemic.

The applicant claimed to suffer from a series of health conditions caused by a vaccine which he said he was compelled to take. He said the vaccine was of poor quality. He further alleged it had been improperly stored.

He died in 2010 in his mid-40s.

In 2012, the court released its decision and held that compulsory vaccination was an interference with the applicant’s private life but that it was justifiable in a democratic society for the purpose of protecting public health.

In New Zealand we have had cases dealing with similar issues.

Our Supreme Court issued a decision in 2018 on water fluoridation. That case decided the South Taranaki District Council did have the power to fluoridate water. It looked at a provision in the Bill of Rights Act where one can refuse to undergo any medical treatment.

However, a general provision in the act subjecting rights to reasonable limits prescribed by law was critical to the decision.

justifiable in a free and democratic society. Fluoridation of the water supply was ultimately legal.

Then there was a case involving Rentokil brought by WorkSafe. A restroom cleaner had contracted hepatitis B. The company recognised the role created the risk of contracting diseases such as hepatitis.

The employer breached its health and safety obligations to take all reasonable steps to ensure the safety of employees. The court decided the company should have “offered” a vaccine to the employee.

In a case involving Air New Zealand and its drug-testing policy, the Employment Court accepted that the airline’s health and safety obligations made it reasonable to include drug testing in safety-sensitive areas.

Regardless, employers need to be astute to objections that have a strong foundation. For example, if the objection is based on the provisions in the Human Rights legislation prohibiting discrimination on certain grounds.

Whether a dismissal for refusal to be drug tested in an airline was justified or not would be dependent on all the circumstances and certainly would not automatically be justified, even where all the policy documents were in order.

The justification for a policy that required employees to take a coronavirus vaccine would be weaker than the justification for drug testing in safety-sensitive areas of an airline – for example for pilots.

The Rentokil case provides a better guideline for vaccines. Employers are likely to have discharged their obligations if they recommend to their staff they take the vaccine and they offer to provide it, preferably free of charge.

Employers could make offers of employment conditional on potential employees providing proof of vaccination, subject perhaps to certain reasonable exemptions. This would be a particularly attractive approach in areas such as the healthcare sector.

New Zealand’s political and public health leaders have taken the community with them by accepting quite intrusive restrictions such as the lockdown. The leadership has encouraged us to care for each other with kindness.

There has been legal support for what has been done, but winning people over has been at the heart of our approach.

I cannot see the Government making it mandatory for people to be vaccinated, even if they have the power to do so.

Employers would also be wise to, at the very least, follow that approach by making vaccines available and encouraging their staff to be vaccinated.

New Zealand has been very successful in keeping the virus out of our community. Now that the vaccine is incoming, I am sure we will be equally successful at vaccinating our population and reopening our borders.