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Cosmic Thing
Cosmic rays, parental leave... and a decision of the Employment Tribunal.
In 1912 a scientist from Vienna, Victor Hess, ascended 16,000 feet in a hot air balloon in an effort to obtain evidence of a previously undetected form of radiation which appeared to be originating from outside of earth's atmosphere. Four years later, Mr Hess' work (which led to him being awarded a Nobel prize) contributed to a theory published by a former patent clerk entitled the General Theory of Relativity. The high energy charged particles that Hess had observed gave rise to a number of significant astrophysical investigations (by Einstein and others) which led to difficult questions about the dynamics of our Universe.
Even the most casual reader of this column might question the relevance of these difficult questions of astrophysics (let alone the greater questions about their place in our Universe) in the context of employment law. Nonetheless, a question involving cosmic radiation has recently come before the Employment Tribunal in the context of a decision which may send important signals to employers about the need to ensure that they are kept up to date about potential threats to safety and the workplace.
The applicant in Horne v Air New Zealand Limited (Unreported, Employment Tribunal Auckland, 28 March 2001) was a flight attendant on certain of Air New Zealand's international routes. In the early part of 1999 Ms Horne discovered that she was pregnant. She did not disclose that fact to her employer until some two and a half months later when she obtained the results of certain tests. Upon learning that Ms Horne was by then over four months pregnant, and that she intended to seek parental leave, Air New Zealand advised her that she was to be "stood down" from her job with immediate effect. Ms Horne was unhappy with this course of action and made a complaint against her employer under the parental leave legislation.
Air New Zealand's defence to Ms Horne's complaint was complex, and based on a good deal of scientific evidence. In brief, the employer argued that evidence existed which proved the possibility of risk to an unborn child as a result of exposure to cosmic radiation. This evidence also established that the amount of cosmic radiation increased with altitude - meaning that the risk of exposure was significantly greater for pregnant women on board aircraft. Because of the increased altitude (and the length of the flights) the potential exposure was greater for flight attendants on international routes than it was for those on domestic routes.
Air New Zealand said that it had developed, but had not implemented, a policy concerning the risks of exposure to cosmic radiation for pregnant employees. In developing the policy, Air New Zealand had taken into account similar policies used by other international airlines. Interestingly, despite the fact that it had not introduced a policy, Air New Zealand had created six ground-based positions which could be filled by pregnant flight attendants for the period of pregnancy: the evidence before the Employment Tribunal was, however, that at any one time at least 20 flight attendants employed by the company were pregnant, so that temporary redeployment to one of these positions could not be guaranteed.
The Tribunal found that Air New Zealand had done its best to formulate a policy in line with overseas information and taking into account the scientific evidence available to it. It held that the airline had done its best to manage known risks, and that it had acted reasonably in directing Ms Horne to commence her parental leave when it did.
One of the significant features of this case was the consideration given by the Tribunal to the Health & Safety & Employment Act. It was accepted that a provision in the Act meant that it could not apply to employees on board commercial aircraft. In the absence of this exclusion, however, the Tribunal observed that the employer would have been under an obligation to provide a safe workplace by eliminating, or reducing exposure to, significant hazards (such as the dangers presented by cosmic radiation).
The lesson which employers may take from this decision is that health and safety legislation casts an obligation to identify and eliminate hazards. That may involve the employer in ensuring that it is up to date both with international practices and the latest scientific findings. When the dangers of certain workplace activities become apparent (such as exposure to asbestos and, potentially, radiation from cellular telephones) employers would be wise to seek advice about their obligations.
