Neilsons Assists in Landmark Employment Case

Luke Meys, one of our Directors, has recently acted successfully as a litigation guardian in two parallel cases: Fleming v Attorney-General [2021] NZEmpC 77 and Humphreys v Humphreys [2021] NZEmpC 217.

Both cases involved severely disabled adults who were cared for on a full-time basis by a family member. Luke was appointed as litigation guardian to represent the interests of the disabled person, who lacked the capacity to participate in the proceedings themselves.

The Artificial Relationship

The Ministry of Health had arranged the care so that in order to receive care funding, the family must enter into an employment relationship with the disabled person as the employer and the caregiver as the employee. This was despite – as the Court found – the disabled person having no ability to meet the usual obligations that go along with being an employer.

While the Ministry claimed it was only a funder of the care and otherwise was not involved in it, the Court found that the Ministry set up the care arrangement and continued to have significant oversight of the relationship.

The Court found that any employment relationship was completely artificial, as the disabled person could not be an employer due to a complete lack of capacity. Employers have a number of obligations they must fulfil – such as tax obligations, minimum wage requirements, and health and safety regulations – and they face severe consequences if they cannot do so. The disabled persons in these cases, who had the effective mental capacity of a young child, were in no position to discharge these obligations.

 The Court went on to find that the reality of the situation was that the family members were employees of the Ministry, not the disabled person.  

 Next Steps

The welcome decisions represents another step in a battle spanning 10 years against family members being denied pay parity with non-family caregivers, which was found to be discriminatory on the basis of family status.  

The Ministry has appealed these decisions and they will be set down before the Court of Appeal.

Please do not hesitate to contact us for your employment related queries.