Employers cannot unlawfully discriminate against an employee on prohibited grounds, including the ground of age. Doing so exposes employers to legal risk, including personal grievance claims for discrimination per the Employment Relations Act 2000 (ERA), or penalties in the Human Rights Tribunal for breaches of the Human Rights Act 1993 (HRA).
However, the HRA sets out that age discrimination or different treatment based on age may be lawful where age is a genuine occupational qualification for that position or employment, whether for reasons of safety or for any other reason, unless reasonable accommodation can be made without unreasonable disruption to the activities of the employer.
A recent decision in the Employment Court, McGearty v Air New Zealand Ltd [2025] NZEmpC 223, examined this issue in depth. The Court of Appeal has since granted Air New Zealand leave to appeal that decision in Air New Zealand Ltd v McGearty [2026] NZCA 180, meaning the legal landscape in this area may yet shift further.
McGearty v Air NZ
Background
The employee in this case is Captain Garth McGearty, a pilot employed by Air New Zealand (Air NZ) who attained the rank of captain of the Boeing 777, being the most senior line pilot, referred to as C7. He turned 65 on 24 July 2017.
There are international standards that prohibit pilots of 65+ years of age from flying internationally. This is a genuine occupational qualification that would allow Air NZ to treat an employee differently based on their age. However, Air NZ is first required to make reasonable accommodations so long as it does not unreasonably disrupt their activities.
In light of this, Captain McGearty’s Collective Employment Agreement (CEA) set out how Air NZ would deal with pilots once they turn 65.
There was a clause in the CEA that precluded pilots from flying to certain destinations and being rostered in the pilot’s current fleet where foreign legislation relating to the pilot’s age prohibited it. The clause also provided for specific positions to transfer into. Air NZ treated this clause as triggered without any inquiry and put Captain McGearty on leave without pay.
Captain McGearty did not agree with the proposed position transfers made by Air NZ which accorded to the policy set out in the CEA and included an offer to a demoted position. Instead, Captain McGearty requested he remain as C7. Following this request, Air NZ did not permit Captain McGearty to fly as C7 for an interim period during which Air NZ could have reasonably accommodated such request without unreasonable disruption.
Analysis
During the interim period, Air NZ was consulting with related bodies to discuss the larger impact of granting Captain McGearty his request. The Court held considering the big picture does not mean Air NZ can ignore its obligations to the individual: Captain McGearty’s fundamental human rights. Especially where it had been put on notice of his discrimination claim.
Air NZ argued it would be difficult to adjust rostering to accommodate for +65-year-old pilots without an updated software system and that this constituted an unreasonable disruption. The Court held difficulty in accommodating changes does not amount to an unreasonable disruption. Air NZ speculated that potential disruptions may eventuate but produced no supporting evidence.
An investigation report revealed there were rosters that could accommodate several +65-year-old pilots while complying with current rules and without any change to the existing roster system. It was clear from their evidence that there was room within the system to accommodate individuals where necessary.
Outcome
Captain McGearty’s personal grievance claims against Air NZ for unjustified disadvantage and unlawful discrimination by reason of age were successful.
The Court observed that what is considered ‘reasonable accommodation’ depends on the specific circumstances of the employer and may evolve over time. It stated:
‘A policy that may have fulfilled legal obligations at one time may no longer be compliant for present purposes given technological advances, commercial developments, and changes in legislative and regulatory environments. Over time, these changes may reduce the impact of what previously amounted to an unreasonable disruption. The onus is on Air NZ, as the employer, to ensure that it continues to meet its legal obligations in light of those factors.’
Hence, the policy set out in the CEA for pilots over 65-years old was not considered a ‘reasonable accommodation’ at the time it was applied to Captain McGearty.
The Court ultimately held:
- McGearty was disadvantaged by the unjustified actions of Air NZ. Air NZ’s decision to treat the clause in the CEA as triggered without undertaking an inquiry was a breach of the collective agreement and/or wrong on its merits. The decision to place Captain McGearty on leave without pay in those circumstances was also unjustified.
- Air NZ unlawfully discriminated against Captain McGearty by reason of his age. The unlawful discrimination occurred through Air NZ’s failure to make adjustments to ensure that Captain McGearty could continue as a C7 – adjustments which did not amount to unreasonable disruption of its business activities.
Leave to Appeal granted
The story does not end with the Employment Court’s judgment. In Air New Zealand Ltd v McGearty [2026] NZCA 180, the Court of Appeal granted Air New Zealand leave to appeal on three questions of law:
- Did the Employment Court err in law by failing to apply the orthodox and required principles of contractual interpretation when interpreting clause 3.2.3 of the Collective Agreement?
- Did the Employment Court err in law by failing to apply the statutory test of justification in section 103A(2) of the ERA to the respondent’s claim of unjustified disadvantage?
- Did the Employment Court err in law when it found that the appellant had not made adjustments, not involving unreasonable disruption to its activities, as required by section 35 of the Human Rights Act 1993?
After considering the parties’ submissions and the settled criteria governing such applications, the Court of Appeal determined that leave should be granted on all three questions.
The Court of Appeal’s substantive decision will be one to watch. It has the potential to clarify – and possibly recalibrate – how employers must approach the interaction between contractual policies, the statutory justification test, and the duty to make reasonable accommodations under the HRA. Until then, the Employment Court’s reasoning in McGearty remains the leading guidance.
Key takeaways for employers
You can treat an employee differently based on their age if age is a genuine qualification for the job, unless you can make reasonable adjustments and accommodations without unreasonable disruption to the business’ activities.
Unreasonable disruption must be clear from evidence and appears to be a high threshold, exceeding mere difficulty.
Policies should be regularly reviewed and updated to reflect the true circumstances of the employer.
If you consider an employee to be unfit for work due to any exception to a prohibited ground of discrimination, ensure adequate inquiries are made and do not place them on leave without pay.
Employers should also continue to monitor this case. With the Court of Appeal now seized of the matter, further guidance on age discrimination, reasonable accommodation, and the interpretation of collective agreement clauses dealing with age-related restrictions is likely on the way.
Need help on a matter regarding unlawful discrimination? Get in touch with the team at Copeland McAllister. Phone 03 211 0153 or email admin@cmalaw.co.nz.
Disclaimer: This update provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.