Changes introduced by the Employment Relations Amendment Act 2026 may see fewer rewards for employee applicants and a shift in the forum personal grievances are raised, particularly when it comes to discrimination.
Bringing a claim for discrimination in New Zealand
Where an employee’s grievance involves discrimination under the Human Rights Act 1993 (HRA)[1], the employee has a choice of forum: pursue a personal grievance under the Employment Relations Act 2000 (ERA), or bring a discrimination claim under the HRA[2].
Employees are not allowed to pursue claims in both the Human Rights Review Tribunal (HRRT) and the Employment Relations Authority (Authority). With the recent changes introduced by the Employment Relations Amendment Act 2026, discrimination-based personal grievances may yield fewer rewards for employee applicants, making the well-trodden path to the Authority a less appealing option.
An important change is the heavy emphasis on the behaviour of employees and whether they obstructed the process or contributed to the situation giving rise to the grievance. This is outlined with the introduction of ‘obstruction’ to the s 103A assessment, and ‘contributory conduct’ to the assessment of remedies under ss 123B, 123C and 124 of the ERA.
These changes will significantly alter how employers assess risk in managing their workforce. It is likely we will see a reduction in employees’ leverage in negotiation and litigation when pursuing personal grievance claims under the ERA.
For employees who have a potential claim on the basis of discrimination, the amendments may tip the balance towards more claims arising in the HRRT rather than the Authority.
Bringing a claim in the Human Rights Review Tribunal
The HRRT hears discrimination claims brought under ss 21 and 22 of the HRA. Critically, it operates under its own remedies regime (s 92I of the HRA), which is independent of and unaffected by the recent amendments. This distinction is significant for employees weighing their options.
In 2018, Employment Court Chief Judge Inglis commented on the diverging pathways for pursuing remedies in each forum and made a helpful observation (our emphasis)[3]:
“While there are obvious synergies between the two jurisdictions, there is a demonstrable divergence in the approach to quantum — in the case of particularly egregious breaches of rights on the part of the employer, higher awards appear to be made in the Tribunal than in either the Authority or the Court.”
Chief Inglis provided further guidance on this by noting the Authority and Employment Court appear to be bound by factors identified by the Court of Appeal as relevant to the assessment of remedies. This includes broader economic factors, rather than focusing solely on the impact of the breach on the individual concerned:
“Factors which the Court of Appeal has suggested may be relevant include the need for “moderation” in awards, the impact (in setting an award) on the employer and third parties (such as other employees), the current economic climate and broader social expectations.”[4]
However, despite the possibility of greater gains, very few substantive employment discrimination cases reach the HRRT each year.
A successful example – Doria v Diamond Laser Medispa Taupo
A recent illustration of a dispute that did make it to the HRRT is Doria v Diamond Laser Medispa[5]. In this case, Ms Doria, a beauty therapist who was only seven weeks pregnant, was immediately placed on unpaid early primary carer leave in November 2016 by her employer and was caused to resign shortly thereafter. Jurisdiction was an issue on appeal, and the Court of Appeal confirmed that the Authority “does not have exclusive jurisdiction in relation to personal grievances based on a claim that the employee has been discriminated against in their employment”, therefore Ms Doria was welcome to bring her claim in the HRRT, and the appeal was dismissed[6]. Further, in relation to parental leave complaints specifically, the Court of Appeal held that the HRRT had sole jurisdiction[7].
The HRRT found that all three defendants (the company and two individual directors) had unlawfully discriminated against Ms Doria on the basis of her pregnancy in breach of s 22 of the HRA. Total damages of $99,770.30 were awarded, comprised of $15,467.00 for pecuniary loss, $9,303.30 for loss of the benefit of paid parental leave, and $75,000.00 for humiliation, loss of dignity and injury to feelings. This placed the case firmly within the highest band of the Hammond damages framework[8].
Notably, the case also highlights the considerable time it can take for such claims to resolve. Ms Doria’s claim arose from events in November 2016, and the decision was not issued until April 2025, nearly nine years after the discriminatory treatment occurred.
Despite the success in Doria, this pathway is not an alternative avenue for employees to shoehorn a claim into discrimination, or to obtain compensation denied to them under the employment jurisdiction. As the HRRT noted in Nakarawa v AFFCO New Zealand Limited[9], its jurisdiction in relation to employment issues is “narrow” and “predicated on a plaintiff first establishing discrimination on one of the prohibited grounds.”
Considering which path to choose
Employees and their advisers should be alert to the possibility of pursuing a discrimination claim through the HRRT. Cases like Doria illustrate the extent of the remedies available especially in comparison to the reduced remedies under the ERA. However, whether the 2026 reforms will lead to a meaningful increase in new and novel discrimination claims before the HRRT remains to be seen.
[1] Section 21, Human Rights Act 1993.
[2] Section 79A, Human Rights Act 1993.
[3] Richora Group Ltd v Cheng [2018] NZEmpC 113 at [61].
[4] Richora Group Ltd v Cheng [2018] NZEmpC 113 at [63].
[5] Doria v Diamond Laser Medispa Taupo Limited [2025] NZHRRT 12.
[6] Diamond Laser Medispa Taupo Ltd v Human Rights Review Tribunal (2020) 17 NZELR 569 at [14]
[7] Diamond Laser Medispa Taupo Ltd v Human Rights Review Tribunal (2020) 17 NZELR 569 at [17] and section 56(4) of the Parental Leave and Employment Protection Act 1987.
[8] See Hammond v Credit Union Baywide [2015] NZHRRT 6, (2015) 10 HRNZ 66 at [176] for an outline of the damages framework.
[9] Nakarawa v AFFCO New Zealand Limited [2014] NZHRRT 9.
