BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Holmes – item about the employment of disabled person – employer told of physical disability only – employee had mental health disability as well – disruption of staff – employer believed that she should have been told of mental health disability – allegedly discriminated against mentally disabled

Findings
Standard 6 and Guideline 6g (discrimination) – item focused on specific employee and presenter’s comment on specific employer – not upheld

This headnote does not form part of the decision.

Broadcast

[1] The disruption caused by an employee with a mental health disability was recounted by a Nelson hairdresser in an item on Holmes broadcast on TV One at 7.00pm on 21 June 2004. The employee had been provided by Workbridge (an NGO) which told the employer of a physical disability but withheld the information that the employee also suffered from a personality disorder. Viewers were advised that the employee had been argumentative and had caused problems during her five months employment at the hair dressing salon. “Petty little things” had grown into a “big problem”. The hairdresser considered that she should have been provided with that information before deciding whether to offer employment. The item advised that the employee left after five months and had initiated, but had later withdrawn, a personal grievance against the employer in regard to her departure.

Complaint

[2] Simon Boyce complained to Television New Zealand Ltd, the broadcaster, that the broadcast breached the requirement not to encourage denigration of or discrimination against specific societal groups. The item, he contended, had promoted employment discrimination by suggesting that the mentally ill were unfit for paid employment. That had occurred, he wrote, as there was a clear implication in the item that the hairdresser would not have employed the person if she had known that a psychological disability, not just a physical disability, was involved.

[3] Mr Boyce suggested that the personal grievance regarding the departure was supposed to have been the issue but that aspect had lapsed. The story, he believed, had become one of spite, and the presenter had taken the employer’s side. The message, he said, had been that Workbridge was not candid with employers and the effect was to reinforce discrimination.

Standards

[4] TVNZ assessed the complaint against the standard nominated by the complainant. Standard 6 and Guideline 6g of the Free-to-Air Television Code of Broadcasting Practice reads:

 

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guideline

6g  Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:

1. factual, or
2. the expression of genuinely held opinion in news, current affairs or other factual programmes, or
3. in the legitimate context of a dramatic, humorous or satirical work

Broadcaster's Response to the Complainant

[5] Disagreeing with the complainant’s summary of the broadcast, TVNZ said the item raised the issue

… of whether employers drawing employees from a Government agency such as Workbridge are entitled to full disclosure about any disability that might affect the would-be employee’s ability to perform the task to which he or she was assigned. The item implicitly accepted that human rights and privacy issues are involved in such disclosure, but also pointed indirectly to the human rights of the employer and existing employees.

[6] TVNZ acknowledged that the item would have been improved had Workbridge’s point of view been given “more prominence”. However, despite initially agreeing to an interview, the representative from Workbridge declined to appear “at the last moment”.

[7] TVNZ argued that the item was “at pains” to avoid discriminating against people on the grounds of mental disability, and contended that the story was valid whether or not the personal grievance claim had gone ahead.

[8] Noting that there was a high threshold before the requirement in Guideline 6g was contravened, TVNZ said that the “factual” item included the hairdresser’s “genuinely-held opinion” as accepted in Guideline 6g(ii). It declined to uphold the complaint.

Referral to the Authority

[9] In his referral, Mr Boyce contended that TVNZ had overlooked a specific aspect of his complaint. He noted that there was no response to his complaint that the presenter had skewed the otherwise unobjectionable aspects of the item into an item involving discrimination. He contended that the item, by giving a minor local dispute national coverage, was intended to suggest to employers a justification for a discriminatory practice.

[10] Mr Boyce did not accept that the employer’s opinion allowed for an item encouraging discrimination. As the employer had indicated that she would not have employed the person if she had known of the alleged illness, Mr Boyce maintained, and as it was not clearly established that the disability caused the problems, the item encouraged discrimination against the employment of people with mental health disabilities.

Broadcaster’s Response to the Authority

[11] TVNZ contended that the Authority should not make its ruling on the presenter’s alleged “sinister motive”, as the complainant had argued. It said that inflection and body movements were “a matter of personal subjective opinion”.

[12] TVNZ did not accept that the item dealt with a “minor local dispute”. The issue explored, it maintained, was of genuine public interest.

Complainant’s Final Comment

[13] The presenter’s final comment on this occasion, “And very nice of Helen to go to Workbridge in the first place, I would have thought”, and not merely his inflection, Mr Boyce wrote, advanced an editorial view of what was supposed to be a neutral current affairs item.

[14] Mr Boyce then covered in some detail the role of Workbridge and the information it revealed to employers. He said that his inquiries disclosed that Workbridge clients were told that relevant information would be passed on to employers. Consequently, he continued:

It seems that the formality of this organisation and the observance of legal and contractual obligation, would not tend to suggest a general problem with Workbridge’s programmes.

[15] Moreover, Mr Boyce maintained, the problems in one hairdressing salon did not justify the implication that Workbridge was misleading employers generally.

Authority's Determination

[16] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[17] The Authority notes that the item did not comment in a general way about people with mental health disabilities as employees. Rather it focused on the salon owner’s concern that she had not been advised of any mental health disabilities before she employed the specific employee. The Authority considers that the item did not encourage denigration of or discrimination against people generally with mental health disabilities.

[18] At the item’s conclusion, the presenter said:

And very nice of Helen to go to Workbridge in the first place, I would have thought.

[19] The Authority acknowledges that one interpretation of this comment could be to suggest that people with mental health disabilities were likely to cause disruption in the work place, or perhaps were in need of charity. Such an interpretation, it observes, could threaten the requirements in Guideline 6g of Standard 6 (encouraging denigration or discrimination).

[20] However, the Authority’s view is that the much more likely meaning from the comment was praise to an employer for considering a range of employee options. Accordingly, the Authority declines to uphold the complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Tapu Misa
Member
30 September 2004

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1. Simon Boyce’s Formal Complaint to Television New Zealand Ltd – 21 June 2004
2. TVNZ’s Response to the Complainant – 21 July 2004
3. Mr Boyce’s Referral to the Broadcasting Standards Authority – 23 July 2004
4. TVNZ’s Response to the Authority – 5 August 2004
5. Mr Boyce’s Final Comment – 11 August 2004