In an era where migration is more common than ever, the question of whether it's legal for employers to ask newcomers about their lack of local work experience becomes a focal point in employment law discussions. Focusing on New Zealand, this blog aims to shed light on this question and elaborate on related nuances.
Under the New Zealand Human Rights Act 1993, it is generally considered unlawful for employers to discriminate against individuals based on race, nationality, color, ethnicity, or national origin. The Act implies that if the lack of New Zealand work experience is used as a method to discriminate against a newcomer, it could potentially be deemed illegal.
However, it's crucial to note that asking about a lack of NZ work experience in itself isn't illegal but may lead to instances of indirect discrimination. For example, if the lack of local experience is used as a reason to not hire someone who is fully capable of performing the job, it could be seen as discriminatory behavior.
Indirect discrimination occurs when a policy that appears neutral on the surface disproportionately affects individuals from a certain group. Therefore, a policy demanding local work experience may indirectly discriminate against immigrants who are unlikely to possess such experience.
If this requirement for local experience isn't truly necessary for the job and serves to disproportionately disadvantage newcomers, it may be seen as indirect discrimination under the Human Rights Act. The burden falls on employers to justify that such requirements are genuine occupational qualifications and not mere preferences.
Employers have the right to ensure that a potential employee has the necessary skills and qualifications to perform a job. In some cases, local work experience could be relevant. For instance, certain roles might require an understanding of local industry standards, laws, or customs, making local experience a genuine occupational qualification.
However, it's incumbent upon the employer to ascertain that the lack of local experience doesn't overshadow the assessment of the applicant's relevant skills, qualifications, and overall ability to do the job.
The New Zealand Human Rights Commission plays a vital role in providing guidance to employers on preventing discrimination in the workplace. Employers unsure about their hiring practices can reach out to the Commission for advice and support. Additionally, job seekers who believe they have been discriminated against can lodge complaints with the Commission for review and potential action.
In conclusion, it's not inherently illegal for employers to ask about a newcomer's lack of NZ work experience. However, using this as a decisive factor in the hiring process can lead to discriminatory practices if the requirement for local experience isn't directly tied to performing the job successfully. As with any hiring process, the goal should be to balance the validation of skills and qualifications against the need for equal opportunities, without letting biases influence decisions.
