Union says smoking an addiction and therefore a disability

By JULIET ROWAN and NZPA

Smoking could be considered a disability under the Human Rights Act, according to the Engineering, Printing and Manufacturing Union.

National secretary Andrew Little said employers refusing to hire smokers should remember that for many people smoking is an addiction and could therefore be considered a disability.

The Human Rights Act prohibits discrimination on the basis of disability.

Mr Little made the comment after revelations that a South Island health provider is refusing to hire smokers.

The Human Rights Commission has said the provider, Crown Public Health, can legitimately refuse to hire smokers because smoking is not a human right and therefore is not grounds for discrimination.

But the provider's refusal to hire smokers as counsellors in an anti-smoking programme for Maori has angered unions.

"We are very concerned about the precedent this sets," said Council of Trade Unions president Ross Wilson. Whether someone smoked was irrelevant to their work. "The issue is whether the person is able to do the job."

But, according to an employment law expert, smokers refused jobs on the basis of their habit would have a tough time arguing a discrimination case.

Bill Hodge, associate professor of law at the University of Auckland, said because smoking did not fall into the categories listed in the Human Rights Act including sex, race and marital status, it would be difficult to make such a case.

He agrees that technically smoking could be considered a disability, giving smokers the right to take complaints to the Human Rights Commission or Human Rights Review Tribunal.

But in reality the commission or tribunal would be unlikely to view smoking as a disability because of a person's decision to take up the habit.

Even if smoking were deemed a disability, health-related employers would still have a strong case for arguing that smoking made applicants unsuitable for a particular role.

A spokesman for Health Minister Annette King said yesterday that it was not against the law to discriminate against smokers "and you wouldn't hire smokers to give advice to people to give up smoking, it makes sense".