Greenslade v Commissioner of Police
[2023] NZHC 717
•3 April 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-34
[2023] NZHC 717
IN THE MATTER OF an appeal under s 123(2) of the Human Rights Act 1993 BETWEEN
GUY GREENSLADE
Appellant
AND
COMMISSIONER OF POLICE
Respondent
Hearing: 10-11 October 2022 Court:
Justice Gwyn, Dr N Swain and Dr H Hickey (by VMR)
Appearances:
M S Timmins and G J Robins for the Appellant D Harris and A P Lawson for the Respondent
Judgment:
3 April 2023
JUDGMENT OF THE COURT
(Delivered by Gwyn J)
Solicitors:
Office of Human Rights Proceedings, Auckland Crown Law, Wellington
GREENSLADE v COMMISSIONER OF POLICE [2023] NZHC 717 [3 April 2023]
Introduction
[1] This is an appeal by Guy Greenslade against a decision of the Human Rights Review Tribunal (Tribunal).1
[2] Mr Greenslade applied to join the Royal New Zealand Police College (Police College) in 2014. In his application form, Mr Greenslade disclosed that he had dyslexia. Police College candidates had to sit and pass a variety of tests in order to be admitted. One of those tests was a typing test. Mr Greenslade passed all of the tests except the typing test which he failed three times. Mr Greenslade was declined entry to the Police College.
[3] Mr Greenslade’s claim before the Tribunal was that he was unlawfully refused employment by the Police because of his dyslexia, in breach of s 22 of the Human Rights Act 1993 (HRA). Mr Greenslade says that the Tribunal made errors of fact and law in concluding that he was not qualified for the role for which he had applied and that therefore s 22 of the HRA was not engaged. He says those errors are:
(a)Finding Mr Greenslade was not “qualified for work” as a recruit at the Police College, for the purposes of s 22 of the HRA.
(b)In doing so, failing to interpret the phrase “qualified for work of any description” beneficially and with the intent of upholding human rights, as required by authority.
(c)Finding that “latitude or deference” must be given to an employer when it determines whether a particular qualification or capability is a legitimate requirement for work.
(d)Finding that typing, as assessed by the respondent’s typing test, was a legitimate qualification for employment as a recruit at the Police.
1 Greenslade v Commissioner of Police (Human Rights Act) [2021] NZHRRT 53 [HRRT Decision].
(e)Failing to find that the respondent refused to employ Mr Greenslade and/or offered him less favourable opportunities for training than were made available to his peers, by reason of a disability or an assumed disability. In particular, the Tribunal failed to identify that Mr Greenslade’s dyslexia or an assumed difficulty with processing and recording new information accurately were material factors in the respondent’s decision to not offer a fourth attempt at the typing test and/or to decline his application for work.
(f)Finding that Mr Greenslade was required to establish that someone without his disability would have been treated differently, when that is not required by s 22(1)(a) of the HRA.
Background
[4] Each year approximately 7,000 people apply to join the Police. The evidence for the Police was that approximately 23 per cent of this number make it through the recruitment process and are employed at Police College.
[5] The Police recruitment process involves various stages of tests and checks, including: physical, medical, psychometric and literacy testing; background checks and interviews. Applicants must meet the requirements of each stage before they are considered for employment at Police College on a fixed term basis as a recruit. Further training and testing then occurs at Police College.
[6] The typing test occurs roughly in the middle of the recruitment process. The test was introduced in 1994 and assesses typing speed and accuracy.
[7] Mr Greenslade was aged 18 when he applied to be admitted to Police College in June 2014. In September 2014 he completed the first interview in the admission process.
[8] In June 2015 he was invited to attend an assessment day. As part of that assessment Mr Greenslade completed a Police Officer Recruitment Pre-Assessment Form, in which he rated himself “low” on typing as a competency. Mr Greenslade
did, however, sign a form acknowledging that he could type 25 words per minute (WPM).
[9] During the assessment day Mr Greenslade sat several tests which included a language test, a writing test, a reading test and a listening test. Mr Greenslade passed all of these tests and, in July 2015, he was told that he had either met or exceeded the required standards, so that he would move to the formal interview stage.
[10] Mr Greenslade was interviewed by Brittany Johnson, a Police Selection Specialist, on 4 August 2015. At the end of that interview Mr Greenslade was required to complete the typing test.
[11] The test is a copy typing test. Applicants are given a standardised block of text on a piece of paper and 10 minutes to type as much as possible into a Microsoft Word document. Electronic spellchecking is not allowed. Applicants must type at least 25 WPM to pass. Errors are deducted, to provide a true typing speed. The test does not require applicants to touch type. Ms Johnson’s evidence was that more than 90 per cent of applicants she tested who passed the test did not touch type. Applicants have the typing test explained to them, including how it is scored, at the time their formal interview is booked and immediately before they sit the test. Ms Johnson’s evidence was that, when she was administering the typing test, she would instruct applicants to aim for speed and accuracy and that they needed to find the balance if they were stopping to correct spelling mistakes a lot.
[12] Records of Mr Greenslade’s first attempt at the typing test on 4 August 2015 no longer exist, but it is agreed that he did not pass.
[13] Ms Johnson’s evidence is that she discussed with Mr Greenslade what he needed to do to improve his typing speed and suggested that he should perhaps focus on speed and accuracy and not go back to fix his mistakes.
[14]On 30 November 2015 Mr Greenslade was invited to re-sit the typing test.
[15] Mr Greenslade sat the test again, twice, on 30 November 2015, but failed both times. Ms Johnson’s evidence was that she had never seen so many red lines indicating mistakes and that Mr Greenslade’s skills had not improved since he first sat the test on 4 August 2015. Ms Johnson recorded Mr Greenslade’s score in the typing test as -62 WPM. He had made 106 mistakes. Ms Johnson said Mr Greenslade seemed pleased with his effort and oblivious to how bad it was. Ms Johnson says she asked Mr Greenslade whether this was how he saw the copy sheet and he replied it was. Ms Johnson recalls that she just said okay and that she would give him a call with the result, but that it was a fail again. Ms Johnson did not immediately tell Mr Greenslade he had failed again. She could not recall if Mr Greenslade mentioned his dyslexia at that stage.
[16] Mr Greenslade’s evidence before the Tribunal was that he did not seriously practise his typing skills until after his third failure at the test, on 30 November 2015. He said he thought he would have other chances to pass the typing test but was not given an opportunity to re-sit the test again. It is uncertain on the evidence before the Tribunal what exactly was said in the conversation between Ms Johnson and Mr Greenslade on 30 November 2015. Ms Johnson was concerned at Mr Greenslade’s score on the typing test, which she viewed as “pretty shocking”. She said she realised she needed to seek advice about the situation.
[17] On 7 December 2015 Ms Johnson emailed Margaret Kennedy, the Police Recruitment Manager for the Lower North/South Islands, seeking advice about Mr Greenslade. Ms Johnson described Mr Greenslade as “my applicant with dyslexia who will not be able to type his typing test”. The following portions of Ms Johnson’s email to Ms Kennedy are relevant:
Guy is a great applicant who has been up front with me about his dyslexia. He passed the PT1s on AD and received average marks, verbal and numerical both stanine 4 and abstract stanine 5.
…
Guy has had two attempts at the typing test and has failed dramatically both times… I have attached his most recent test. Guy has good typing speed however due to his dyslexia he makes an enormous amount of spelling mistakes. Guy will never be able to achieve a pass mark in typing and he explained to me that when he looks at the copy to be typed it looks like a mass
of nonsensical words. I think his test sheet demonstrates this well – he has typed what he sees.
…
[18] Ms Johnson asked Ms Kennedy how to proceed – whether to decline Mr Greenslade’s application, whether there was another assessment he could undertake, or whether they would make an exception for him in connection with his typing test. Ms Johnson recalls that it was Ms Kennedy’s idea to contact Police Psychological Services about Guy’s typing test.
[19] On 7 January 2016 Ms Kennedy emailed Fiona Johnston at Police Psychological Services. Ms Kennedy asked Ms Johnston for recommendations as to whether it was appropriate to make an exception for Mr Greenslade in connection with the typing test, so that he could be considered for a position with the Police.
[20] In her email, Ms Kennedy presented Ms Johnson’s opinion that Mr Greenslade would never be able to pass the typing test and that he typed “what he saw” as actually being Mr Greenslade’s comments.
[21] Mr Greenslade was not aware of the correspondence between Ms Johnson and Ms Kennedy. In his evidence he said he would never have said he would not be able to achieve a pass mark in the test, nor that he typed what he saw. He said his errors were not due to his dyslexia. Ms Kennedy agreed in cross-examination that her email reported what was told to her by Ms Johnson, not Mr Greenslade’s actual comments.
[22] Ms Kennedy’s email to Ms Johnston was referred to Inspector Ian Saunders, the then-Senior Psychologist with Police Psychological Services.
[23]Inspector Saunders’ advice, on Monday 11 January 2016, was:
·The performance you described below is possibly indicative of highly relevant cognitive issues, related to his dyslexia, that could arise from coding and working memory issues or other challenges in recording information accurately (i.e. this reads to me as not just a typing issue
— it's just that typing is where it is expressed) — this is highly relevant to Police work and a significant risk if it surfaces in frontline circumstances (e.g. recording documentary evidence and giving reliable evidence in court using his records, typing registrations,
names, etc. into NIA, completing FVIR, completing IONs and TONs safely and accurately under time pressure)…
…
·My strong recommendation is that this candidate be provided detailed feedback on this and we offer to refer him to a neuro psychologist (at his cost – circa $1600) for detailed review and assessment of his performance against the role requirements. Until we have such a detailed analysis of his performance we would not be in a position to advise on any way to advance his application.
·It is true that candidates with Dyslexia are in the working population. They all however had passed Police entrance testing and the College program albeit in some instances with support, and no 2 cases are identical. I don’t think that makes it a sound business decision to hire somebody with the expectation they will require support to be minimally competent or pass the training requirements – it is simply unfair to the candidate, their future colleagues/supervisors and the public.
[24] Ms Kennedy and Inspector Saunders’ evidence was that no exceptions to passing the typing test had ever been made.
[25] On 10 February 2016 Ms Johnson invited Mr Greenslade to attend a meeting with Inspector Saunders to take place on 23 February 2016. Mr Greenslade was advised that the purpose of the meeting was to discuss his application to join the Police, the results of his typing assessment and his dyslexia. He was asked to bring to the meeting all reports and documentation regarding his dyslexia.
[26] Ultimately, Inspector Saunders could not attend the meeting and it was cancelled. Instead, on 7 April 2016 Ms Johnson emailed Mr Greenslade stating that she would like to get a resolution for him and asking him to send a copy of the documentation and reports that he had been asked to bring to the planned meeting with Inspector Saunders.
[27] Mr Greenslade sent Ms Johnson a Seabrook McKenzie assessment of his dyslexia which had been compiled almost five years before, on 28 October 2011. Mr Greenslade advised that the Seabrook McKenzie report no longer accurately recorded the skill level he was working at and was relevant only to how he learned.
[28] On 3 May 2016 Ms Johnson provided the Seabrook McKenzie report to Inspector Saunders. Inspector Saunders replied on 17 May 2016, advising that there was nothing in the report that mitigated the concern he had which was, fundamentally, that despite several opportunities, Mr Greenslade could not demonstrate an ability to pass the typing test. Inspector Saunders said:
Guy’s case is relatively straightforward as he has failed to meet a usual standard for selection and as such should be declined. I don’t see anything in the material you have provided me that mitigates the concern that we have – fundamentally that despite several opportunities he cannot demonstrate an ability at the minimum standard for typing for entry to Police. The typing test reflects operational requirements for frontline staff and as such it is a highly valid and well established measure of one of the requirements for Policing. Before you could consider his suitability Guy would need to demonstrate the standards required on this test. I would also suggest you review the process around re-testing for Guy, should you intend to do so, as he has had multiple attempts and at some point you will be measuring his ability to learn the test material through repeated practice rather than the skill or ability required for the role.
[29] On 24 May 2016 Mr Greenslade was advised that his application to join Police College had been declined. The decline was expressed in terms that Mr Greenslade could not reapply. The reason given in the 24 May 2016 email mirrors Inspector Saunders’ views – that is, that the Police were of the opinion that Mr Greenslade would not be able to meet the typing standard due to his dyslexia and cognitive ability.
[30] Subsequently, on 11 May 2017, Mr Greenslade was assessed by Dr Barbara Adcock, an educational psychologist and registered teacher. Dr Adcock administered a PATOSS test, assessing Mr Greenslade’s handwriting speed, writing from dictation and typing speed. On the last of these, Mr Greenslade typed 46 WPM and made two errors.
Issues
[31] Mr Greenslade’s claim in the Tribunal, and his appeal before us, was brought under s 22 of the HRA. Section 22 provides:
Employment
(1)Where an applicant for employment or an employee is qualified for work of any description, it shall be unlawful for an employer, or any person acting or purporting to act on behalf of an employer,—
(a)to refuse or omit to employ the applicant on work of that description which is available; or
(b)to offer or afford the applicant or the employee less favourable terms of employment, conditions of work, superannuation or other fringe benefits, and opportunities for training, promotion, and transfer than are made available to applicants or employees of the same or substantially similar capabilities employed in the same or substantially similar circumstances on work of that description; or
…
by reason of any of the prohibited grounds of discrimination.
[32] One of the prohibited grounds of discrimination is disability, which includes any intellectual or psychological disability or impairment.2 Dyslexia is a disability.
Mr Greenslade says:
(a)He was an applicant for employment.
(b)He was “qualified for work of any description” and he was qualified to be employed at Police College.
(c)Given he was so qualified, the Police unlawfully refused or omitted to employ him at Police College by reason of his dyslexia or other assumed disability.
[34] It is not in dispute that Mr Greenslade was an applicant for the Police College and an applicant for employment. However, the Police say Mr Greenslade was not qualified to be admitted to Police College because he failed the typing test three times. That test was one of the minimum competencies required to be admitted to Police College. Mr Greenslade accepts that it is his obligation to prove, on the balance of probabilities, that he was “qualified”.
2 Human Rights Act, s 21(1)(h)(iv).
Meaning of “qualified”
[35] Section 22 makes it unlawful to refuse to employ an applicant by reason of a prohibited ground of discrimination but that prohibition is limited to any employee who is qualified for work. Both parties accepted that being “qualified” acts as a gateway to s 22: the prohibition of discrimination only applies if the applicant for employment or employee is “qualified”. If they are not qualified, s 22 is not engaged.
[36]“Qualified” is not defined in the HRA.
Appellant’s submissions
[37] Mr Greenslade says that “qualified” refers only to objective standards, approvals or authorisations required by law or by an independent organisation. If a particular role does not require such a formal qualification, then no question as to qualification arises. In his submission he is qualified for Police College because no formal qualifications are necessary to be admitted to Police College.
[38]Mr Timmins for Mr Greenslade advanced this interpretation on the basis that:3
(a)Human rights legislation such as the HRA must be interpreted beneficially in order to uphold human rights and the Court should adopt an interpretation of s 22 which affords the greatest protection to those seeking to rely on it and should not exclude claims at an artificially early stage.
(b)Consistent with s 6 of the New Zealand Bill of Rights Act 1990 (Bill of Rights), the Long Title to the HRA and other statutory indications within the HRA, the phrase should be given a fair, large and liberal interpretation.4 A narrower interpretation of s 22 would rob it of its force by artificially restricting its scope and creating an unnecessary and premature barrier to a discrimination claim.
3 HRRT Decision, above n 1, at [37].
4 Coburn v Human Rights Commission [1994] 3 NZLR 323 at 333.
(c)It is consistent with the use of “genuine occupational qualification” in ss 30(1) and 97 of the HRA and “qualifying bodies” in s 38, which imply an official requirement or authorisation.
(d)It is consistent with the term “capabilities” in s 22(1)(b) of the HRA. If the legislature had intended for “qualifications” to mean “capabilities” it would have used consistent terms.
(e)It avoids the need for prospective employees to second-guess an employer’s assessment of something as a “qualification”.
[39] One of the purposes of the HRA is “to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights.”
[40] New Zealand has signed and ratified the convention on the rights of persons with disabilities. Non-discrimination is one of the Convention’s general principles.5 Under the Convention, States Parties are directed to guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds6 and to take all appropriate measures to eliminate discrimination on the basis of disability.7
Respondent’s submissions
[41] For the respondent, Ms Harris says that the “qualified” requirement is necessary to ensure that only those who meet the baseline requirements for a role achieve the protection of the section. It sets a pragmatic balance between the rights of employees and applicants on the one hand, and the rights of employers on the other. Police say that the requirement to be “qualified” is contextual and may include the skill and competency to do the work as well as, or instead of, any formal qualifications required for the work.
5 Convention on the Rights of Persons with Disabilities A/RES/61/106 (2006), art 3(b).
6 Article 5(2).
7 Article 4(1)(e).
[42] Ms Harris accepts that those qualifications and competencies must be “legitimate” and legitimacy is an objective test. In applying that test some latitude or deference must be given to the employer, as they are best placed to assess the qualifications or competencies required for the role. Once an employer has established the legitimacy of a qualification, it is for the prospective employee to establish on the balance of probabilities that they are so qualified.
Our assessment
[43] The meaning of s 22 of the HRA is to be ascertained from its text and in light of its purpose.8 The purpose of the Act, as set out in its long title, is to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights. It does this by making discrimination in employment unlawful. However, that protection is also limited in various ways in provisions of the Act, including ss 22, 27, 30 and 97. As counsel for the Police submit, the purpose of this appears to be to strike a pragmatic balance between the rights of applicants for employment and employees not to be discriminated against, and the rights of prospective or existing employers to make legitimate decisions about their employment requirements.
[44] We accept, as did counsel for the Police, that the Court should apply a generous and purposive approach to interpreting the Act that should not be unduly technical.9
[45]There is no dispute that:
(a)Disability is a prohibited ground of discrimination under s 22(1)(h) of the HRA and dyslexia is a disability for the purposes of this provision. The fact that a disability is assumed, suspected or believed to exist (i.e. even if it does not in fact exist) is sufficient to bring it within the prohibited grounds of disability.10
8 Legislation Act 2019, s 10.
9 Human Rights Act, s 105.
10 HRA, s 21(2)(b)(ii).
(b)The “by reason of” threshold in s 22 requires that the prohibited ground must be a material factor or ingredient in the making of the decision.11
(c)Section 22(1)(a) does not require the analysis of a comparator group. The test is whether the prohibited ground was a material factor in the decision not to employ the applicant.12
(d)Section 22(1)(b) does require the analysis of a comparator group, that is “applicants or employees of the same of substantially similar capabilities employed in the same or substantially similar circumstances on work of that description”.
[46]A plain reading of s 22 requires a two-stage test:
(a)Mr Greenslade must establish that he was:
(i)an applicant for employment or an employee; and
(ii)qualified for the particular work.
(b)That the decision to decline his application and/or the decision to decline him further opportunities for training, was by reason of his disability or a presumed disability.
[47] If Mr Greenslade does not meet the requirements at [46(a)], then s 22 is not engaged at all. If he does meet the requirements at (a) but is unable to establish (b), then s 22 is not breached.
[48] This staged approach has been adopted by both the Tribunal and the Employment Court.13
11 McAlister v Air New Zealand [2009] NZSC 78, [2010] 1 NZLR 153 at [40] and [49].
12 At [49], [61], [64] and [79].
13 Smith v Air New Zealand (2000) 2 ERNZ 376 (Emp Ct) at [93]; Goel v Barron [2022] NZHRRT 28.
[49] The Supreme Court, in comparing s 22 with the discrimination in employment provision in the Employment Relations Act 2000, said:14
More importantly, in the context of s 22(1) of the HRA, the application of s 30 (providing an exception where age is a genuine occupational qualification) is properly available only where age is relied on to refuse employment or to require an employee to resign and does not justify different conditions of employment. That is because s 22(1) applies only if a person is “qualified for work of any description”. If an employer seeks to terminate or refuses to employ an applicant in those circumstances, it is effectively challenging the premise of qualification on which s 22(1) is based. Section 30 permits this because it expressly applies to s 22(1)(a) and (d). Section 30 does not apply to s 22(1)(b) because an employer who is willing to employ someone as qualified for work of that description cannot nevertheless invoke the genuine qualification exception to justify less favourable terms of employment for the work.
[50] This passage suggests a broader interpretation of s 22(1) than advocated for by the appellant – “the premise of qualification in s 22(1)”.
[51] We accept that, within the context of a generous and purposive approach, the interpretation of s 22 advocated for by the respondent is the correct approach.
[52] We accept that “qualified” must, in context, be broader than approvals or authorisations required by law or by an independent organisation. There are many roles in society where competencies and skills are legitimate requirements, in that the job could not be completed without particular competencies or skills, but where there is no formal qualification or approval for the role. This approach is consistent with the decision of the Employment Court in Smith v Air New Zealand where the Court determined that someone would be qualified for work of any description, under s 22 if:15
… that employee is capable of, and in the case of jobs requiring formal qualifications or training, holds those formal qualifications or has undergone the formal training which the particular work requires.
[53] Similarly, in Director of Human Rights Proceedings v Goodrum, the Human Rights Review Tribunal said:16
14 McAlister v Air New Zealand, above n 11, at [31] (emphasis added).
15 Smith v Air New Zealand, above n 13, at [97].
16 Director of Human Rights Proceedings v Goodrum CRT36/2001, 12 April 2002 at 16.
… The word is capable of being interpreted to incorporate other qualities. Indeed the Collins English Dictionary defines ‘qualify’ as ‘having the abilities, qualities, attributes, etc. necessary to perform a particular job or task’.
The authors of Brookers – Human Rights Law… state ‘qualified’ will include any personal qualities necessary to perform the functions of the position successfully…
[54] While, as the appellant notes, that finding was obiter, we agree with and accept the conclusion.
[55] We also accept that the burden of establishing that a qualification is legitimate rests on the employer. The respondent concedes that a definition of “qualified” that would allow employers complete freedom to set whatever form of qualifications, competencies or experience it would like, is not available. Employers are limited to setting “baseline” requirements, that is those that are truly necessary for the role, and the onus is on the employer to justify the requirements set.
[56] This approach was adopted in Proceedings Commissioner v Canterbury Frozen Meat Co Ltd, quoting from Brookers Employment Law:17
To be qualified, an applicant with a disability must first possess the necessary academic, technical, or personal qualifications, or relevant experience or background for the position. It is the employer’s right to specify the mix of qualifications or qualities necessary to discharge the duties of the position satisfactorily. Secondly, the applicant must have the physical and intellectual ability to perform the duties of the position. The employer can only specify ‘legitimate’ physical or intellectual requirements of particular positions. There is no single acceptable definition of ‘legitimate’ physical or intellectual requirements of positions. Rather, it will depend on the nature of the job and the environment in which the job is to be performed.
[57] That requirement for “legitimacy” preserves the balance that must have been intended through the insertion of the requirement. As counsel for the Police note, establishing legitimacy for formal qualifications will be easy, or self-evident. For competencies, the threshold may likely be more difficult for employers to meet.
[58]As the Tribunal said in this case:18
17 Proceedings Commissioner v Canterbury Frozen Meat Co Ltd CRT 14/98, 26 November 1998 at 5 (Complaints Review Tribunal) (emphasis added).
18 HRRT Decision, above n 1, at [48]-[49].
[48] Drawing the threads of those two tests together, we find that the determination of whether a particular qualification or capability specified by the Police for potential employees is a legitimate one requires an objective assessment. When considering the legitimacy of any qualification, latitude or deference must be given to the Police, who are best placed to assess the qualifications or competencies required of Police employees. A legitimate qualification or capability therefore is one that is reasonably necessary for the particular job, given the environment in which that job is to be performed.
[49] This logically means, however, that the requirements or capabilities set by an employer as qualifications are not immune from challenge. A qualification set without a proper objective basis is unlikely to be considered legitimate.
[59] One of the aspects of Mr Greenslade’s challenge to the HRRT’s decision is the use of the phrase “latitude or deference”, on the basis that that is in effect a subjective assessment by the employer. We note that the term “deference” is generally used in the legal context as having respectful regard for the judgement or opinion of an expert body or, more specifically, the legislature or the executive. It is not intended to equate deference to servility, or an abdication of duty by the decision-maker. In this context, we accept that what is a legitimate qualification must be an objective assessment and that it is capable of challenge by an employee or applicant for employment.
Was typing a “legitimate” qualification?
Appellant’s submissions
[60] Mr Greenslade’s primary argument in this regard is that he was applying for employment at Police College, not to be a Police officer, and there is no evidence that typing was a requirement for the Police College.
[61] His supplementary arguments are that he was qualified, as he could meet the typing threshold, but he was not given enough opportunities at the test; he learned to type after his application was declined, and a later educational psychology assessment confirmed he was qualified.
Respondent’s submissions
[62] The Police say that typing is a requirement of the Police officer role and is therefore a legitimate skill to require of applicants for employment.
Our assessment
[63] We accept that Mr Greenslade was applying for a Police officer role, rather than for appointment to the Police College per se. While, as the Police acknowledge, Police are employed at the Police College on fixed term contracts, that is in the context that those at the Police College will go on to become Police officers. We accept that entry to Police College should not be considered as a discrete role, for the purpose of identifying legitimate qualifications under s 22 of the HRA. Limiting Police to testing the skills required only to be a recruit at Police College would, we accept, render the Police recruitment process unworkable. It would result in people being employed at Police College who could not ultimately be Police officers.
[64] Inspector Saunders, who is a registered psychologist, and at the time of swearing his affidavit was the acting Director of Training at the Royal New Zealand Police College, gave evidence in this appeal. Inspector Saunders’ evidence is that keyboard and typing skills were found to be essential in an independent job and task analysis conducted for Police when validating the selection and training criteria for Police officers. A 2007 report from Cerno, Advice on Police Standards and Assessment Practice, noted about the typing and computer skills test:
The Typing Test was introduced in 1994 and assesses an applicant’s typing speed and accuracy… Applicants complete a 10 minute timed test where they are required to sit at a computer, “open” MS Word, create a blank document and type the text from a prescribed sheet. The test is typically administered by the Recruiting Officer before the Behavioural Interview. Applicants must achieve a speed of 25 accurately typed words per minute.
The validity of this assessment was supported, in that the need for assessment of typing and computer skills was linked to operational requirements (i.e. keyboard and word processing work required from Police Officers during the course of their duties, such as entering information into Police intelligence systems, completing reports and preparing documentation for court proceedings.
The minimum standard that applicants must achieve is specific and clear for applicants and for Recruitment Officers who are responsible for assessing whether applicants meet the standard…
[65] In September 2009 Opra Consulting Group undertook a job analysis of the Probationary Constable role for New Zealand Police. In that analysis, typing and computer skills were ranked as the ninth most frequently used skill for Probationary
Constables. Keyboard and typing skills have been confirmed as essential elements of the constabulary role in independent and task analyses conducted to validate the selection and training criteria for Police officers.
[66] Inspector Saunders notes in his evidence that typing remains an essential aspect of a Police officer’s role when preparing emergency documents at a time or place where typing support (administrative support, such as a typist or software that can help transcribe speech into typed text) is unavailable or, for example, where security of information may be essential.
[67] Inspector Saunders also notes that the way in which typing is assessed requires the applicant to read a passage of words, hold that in their mind and accurately reproduce it in the document being typed. He says this requires several cognitive processes and should there be issues with information processing or working memory, performance on the typing test could be affected.
[68] Inspector Saunders’ evidence is that typing is a known component of a frontline Constable’s essential basic skills for the role.
Summary of our conclusions
[69] To recap, we have concluded that “qualified” in s 22 is broader than objective standards, approvals or authorisations required by law or by an independent organisation, and includes necessary competencies.
[70] As to what is a “legitimate” qualification, we accept that this is not a subjective test to be imposed by the employer and that the onus is on the employer to justify any requirements set, if they are put in issue. We are satisfied that in this case, the Police have justified the requirement for the typing competency. This must be viewed in light of what is ultimately required to be a Police officer, not simply what is required for entry to Police College. Having said that, as discussed with Ms Lawson at the hearing, it appears that the Police do not (or did not at the time of these events) have in place a disability policy. It seems to us that such a policy would provide an important touchstone against which the necessity for particular skills and competencies can be
tested, particularly as the technology relevant to those skills and competencies develops.
[71] It is not in dispute that Mr Greenslade did not pass the typing test on the three separate occasions on which he sat it.
[72] On that basis we conclude that Mr Greenslade was not “qualified” for the role for which he applied and thus did not meet the first stage of the test for s 22, as set out at [46] above. He did not satisfy the threshold requirement. Obligation to assist Mr Greenslade to pass the typing test?
[73] Nevertheless, we go onto consider whether there was an obligation on Police to assist Mr Greenslade to meet the typing test, whether by providing another opportunity to pass the test – pre-employment or (as the appellant appears to suggest) to employ Mr Greenslade at Police College and then assist him to meet the typing test.
Appellant’s submissions
[74] The submissions for Mr Greenslade are that he either was qualified for Police College, or could have qualified. As noted at [30] above, he had subsequently tested at 46 words per minute, under the PATOSS test. After sitting the typing test, he was due to complete an online pre-Police course at his own expense – he could have resat the typing test at any point during that course, at no loss to Police. Mr Greenslade says that in the period between his last typing test in November 2015, and his eventual rejection in May 2016, he was regularly in touch with Police by email, noting that he had been practising and he had asked when the next typing test could be administered. Those were strong indications to Police that Mr Greenslade either was in fact qualified to enter Police College or could have qualified had a further test been administered.
[75] Mr Greenslade submits that, as a result of Smith v Air New Zealand, “qualified” assesses potential capability for work. In Smith, Colgan J said:19
The “work of any description” referred to in s 22(1) was the piloting of Air NZ aircraft. Mr Smith was qualified to do so as either a pilot in command or as a first officer and, for the B733 type in particular could without difficulty
19 Smith v Air New Zealand, above n 13, at [120] (emphasis added).
have so qualified. The plaintiff was suspended (that is, not rostered for duties and not paid) because he turned 60 years of age, that is, by reason of his age.
Respondent’s submissions
[76] The respondent says that Smith v Air New Zealand can be distinguished, as Mr Smith was already qualified for employment and his dispute related to the imposition of additional barriers for his ongoing employment. That is not Mr Greenslade’s situation.
Our assessment
[77] As the Tribunal noted,20 s 22(1) refers to an employee who “is” qualified for work. “The requirement is a present tense one. An applicant must meet the qualification at the time the assessment of that qualification is made.”
[78] In this regard, Mr Greenslade relies on Smith v Air New Zealand.21 In that case, the Employment Court considered that Mr Smith could have become qualified in a particular area and therefore remained qualified to be a pilot. However, that obligation on the employer was expressed in the context of an existing employment relationship, where Air New Zealand was arguing that Mr Smith was no longer qualified to be a pilot.
[79] We accept that any obligation on employers to assist employees to remain qualified is different from a purported obligation on employers to assist applicants for employment to get qualified, or to hire them despite them being unqualified, on the basis that they may be able to be trained to become qualified.
[80] Nor is Mr Greenslade’s subsequent PATOSS test relevant. Under that test he was assessed by Dr Adcock as having a typing speed of 46 words per minute, with only two mistakes, while the Police typing test required only 25 correct words per minute. We accept that the PATOSS test was not equivalent to the typing test administered by the Police and that Dr Adcock, who administered the test, had no knowledge of experience of the capabilities required of a Police officer. We accept,
20 HRRT Decision, above n 1, at [69].
21 Smith v Air New Zealand, above n 13.
as the Tribunal found, that it is far from clear that the tests were comparable. There is therefore not an evidential basis to conclude that Mr Greenslade was in fact qualified at some point before the refusal email of 24 May 2016.
Was refusal of employment “by reason of” Mr Greenslade’s dyslexia?
[81] We also go onto consider whether, even if Mr Greenslade were not “qualified” for the role, he was discriminated against on the basis that the Police assumed, incorrectly, that he was not able to meet the qualifications required by reason of his dyslexia.
[82] Mr Greenslade says that he could have passed the typing test but he was not given a further opportunity because of the assumptions made about the impact of his dyslexia on his ability to do so.
[83] We accept that the test for causation is as set out in McAlister v Air New Zealand,22 – that is, whether the prohibited ground of discrimination was a material ingredient in the making of the decision.
[84] The Police were clearly aware of Mr Greenslade’s dyslexia. He declared it in his application form and, following his third failure of the typing test, the Police made enquiries for his benefit to see if an exception could be made to the typing test. It was plainly a feature of the discussions between Ms Johnson, Ms Kennedy and Inspector Saunders.
[85] We agree with the Tribunal’s conclusion that the issue of whether dyslexia was a material ingredient in this case should be assessed by looking at his typing test results.23 Ms Johnson’s evidence was that his first attempt at the test in August 2015 was “pretty awful”. His skills had definitely not improved by November 2015, although he had had time to practise. Ms Johnson said she had never seen so many red lines, indicating mistakes, and that the test was unmarkable. Ms Johnson says Mr Greenslade’s score was the lowest she had ever seen. Ms Johnson’s evidence was
22 McAlister v Air New Zealand, above n 11, at [48]-[50].
23 HRRT decision at [81].
that three attempts was the standard number of attempts given to people on the typing test.
[86] We agree with the Tribunal conclusion that it was reasonable for the Police not to proceed further at that point.24 Although we note that in fact the enquiries made by Ms Johnson after Mr Greenslade’s third failed attempt, and her subsequent discussions with Ms Kennedy and Inspector Saunders, indicated a willingness to take Mr Greenslade’s application further if possible. That is consistent with the fact that Police were aware from the outset that Mr Greenslade had dyslexia (he declared it in his application), and in that knowledge his application was progressed, through all of the relevant testing, including the three attempts at the typing test.
[87] The Police evidence was that Mr Greenslade’s results were so far from the requisite standard that they could reasonably conclude that another attempt would not change the position:25
The material factors in not allowing Mr Greenslade to re-sit were his very poor results and a lack of any improvement in his typing tests. The Police would not have afforded any candidate, dyslexic or not, who had such test results a further opportunity.
[88] We therefore agree with the Tribunal’s conclusion that the Police’s mistaken belief as to why Mr Greenslade failed the typing test is not material.26
Was Mr Greenslade afforded less favourable treatment by reason of his dyslexia?
[89] Mr Greenslade primarily relies on s 22(1)(a) of the HRA, but his last ground of appeal (at [3] above), refers to s 22(1)(b). Mr Greenslade relies on the Tribunal’s comments27 as appearing to suggest that a comparator was necessary for the purposes of the s 22(1)(a) analysis. The Tribunal said:
On Mr Greenslade's own evidence he did not practice enough; his failure was not by reason of his disability. Mr Greenslade was not precluded from being qualified due to his disability but rather because of his test results. What Mr Greenslade is, in effect, asking for is to be treated more advantageously than someone without dyslexia, even though his lack of preparation and not his
24 At [82].
25 At [82].
26 At [82].
27 At [84].
disability was the reason he did not pass the typing test. The HRA does not extend that far. Finally, we note that Mr Greenslade has not established that someone without his disability, who failed the typing test as poorly as he did, would have been treated differently. Without such a showing his claim must fail.
[90] While that comment is not entirely clear, on our reading of the Tribunal judgment, the members did not intend to suggest that a comparator exercise was necessary. Nor did the Tribunal attempt such an exercise, other than its bare comment in this paragraph.
Outcome
[91] In conclusion, in relation to Mr Greenslade’s specific grounds of appeal, we find:
(a)The Tribunal did not make an error in finding that Mr Greenslade was not “qualified for work” as a recruit at the Police College, for the purposes of s 22 of the HRA.
(b)In doing so, the Tribunal did not err in its interpretation of the phrase “qualified for work of any description”.
(c)The Tribunal did not err in concluding that the employer must objectively determine whether a particular qualification or capability is a legitimate requirement for work.
(d)The Tribunal did not err in finding that typing, as assessed by the typing test, was a legitimate qualification for employment as a recruit at the Police College.
(e)The Tribunal did not err in finding that Mr Greenslade was refused employment and/or offered less favourable opportunities for training then made to his peers, by reason of his dyslexia.
(f)The Tribunal did not conclude that the appellant was required to establish that someone without his disability would have been treated differently, in terms of s 22(1)(b) of the HRA.
[92]Accordingly, the appeal is dismissed.
Costs
[93] No question of costs arises, counsel for the Police having advised that the Police would not seek costs in the event they were successful in this appeal.
Gwyn J
Gwyn J
Solicitors:
Office of Human Rights Proceedings, Auckland Crown Law, Wellington
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