For those employers who have a presence in Jersey, the Isle of Man and/or the UK, they might be forgiven for thinking that they will already be compliant with the Ordinance since they are used to operating in jurisdictions with equality legislation, and so don’t need to do anything. At first glance, such a view may be understandable, as just how different can two laws be that basically do the same thing?
Well, the bad news for those who are used to operating with the Discrimination (Jersey) Law 2013 (“the Jersey Law”) is that the answer to this question is, actually, quite a bit. This article therefore looks at the key differences between the Ordinance and the Jersey Law and discusses the potential implications for those employers who operate across the Channel Islands.
The most obvious point of difference is in the protected grounds (known as protected characteristics in Jersey) upon which it is unlawful to discriminate. In addition to the 5 protected grounds set out within the Ordinance, it is already unlawful in Guernsey to discriminate in an employment context on the grounds of sex, gender reassignment, marital status, and pregnancy / maternity. In Jersey, the protected characteristics are race, sex, sexual orientation, gender reassignment, pregnancy / maternity, age and disability.
Following the introduction of the Ordinance, there will be additional protections against discrimination for religion or belief and carer status in Guernsey that are not present in Jersey, both of which pose some interesting questions for employers.
The scope of the protection against discrimination on the grounds of religion or belief was subject to intense debate within the States of Guernsey. Ultimately, the protection was broadened from being limited to solely “religious beliefs” to cover a wider category of philosophical beliefs, bringing it in line with the protections in the UK. Whilst each case will ultimately turn on its own facts, there is now extensive UK caselaw that will be helpful in determining what is and what is not considered to be a philosophical belief and so protected under the Ordinance. Recent examples have included ethical veganism, gender critical beliefs, climate change and animal rights.
With regards to carer status being a distinct protected ground, this is likely to be more challenging for employers, as not only is the Guernsey position different to Jersey in providing this protection but there is no equivalent protection in the discrimination laws in either the UK or the Isle of Man either. This makes it harder to anticipate how carer status will be construed by the Tribunals. For further information, we have written on the potential implications of carer status in a separate article that can be accessed here.
Whilst it is important to note that Guernsey currently has no protection against age discrimination (unlike in Jersey), the States of Guernsey have confirmed they are committed to adding age as an additional protected ground in the future.
These differences will give rise to a number of practical steps that employers need to take. The first and most obvious will be to ensure that equal opportunities policies and training that is provided covers these additional protected grounds.
The addition of religion or belief as a protected ground should cause employers to focus even more on inclusivity within their workplace culture – an obvious example of this will be events that are based solely around alcohol, which will inevitably exclude employees of the Muslim faith. Similarly, carer status will add additional focus on policies around flexible working and emergency leave policies, and how such requests are dealt with. An example here would be if an employer is unable to objectively justify rejecting a request for flexible working from a carer, that employee would potentially have a claim for constructive dismissal and discrimination – regardless of their length of service.
Another area of difference will be around the issue of disability discrimination, both in terms of what constitutes a disability and also how claims can be brought. It should be said at the outset that the definitions of disability are similar in a lot of ways – both must have an impairment that lasts or is expected to last for six months (or until the end of a person’s life).
The key difference is that the definition in Jersey only applies where the person can demonstrate that they have a “long-term physical, mental, intellectual or sensory impairments which can adversely affect a person’s ability to engage or participate in any activity”. In Guernsey, there is no requirement for an impairment to have any particular effect at all. The practical difference between the two positions will be most stark in dealing with matters around mental health, where it is often difficult for employees in Jersey to demonstrate the required “adverse effect”. As a consequence, the Guernsey approach will mean that, provided an employee can demonstrate they have had some form of impairment for six months, it will be considered a disability.
This is important because once an employee has a disability, the duty to make reasonable adjustments for employers is triggered. Employers used to operating in either Jersey or the UK (where the definition is even narrower) will need to be conscious of these kinds of issues, especially in managing sickness absences or implementing other policies and procedures.
Where this is most likely to be experienced for employers is in the additional right not to suffer discrimination arising from a disability that is contained within the Ordinance, but not in the Jersey Law. This right means any action taken by an employer which relates to or arises from a person’s disability must be objectively justified. This obviously covers any form of management action relating to attendance or sickness absences, but would also cover dealing with performance issues where a person’s disability is a contributing factor. Whilst employees could still bring an indirect discrimination claim in Jersey, in practice this is far more complex to pursue, and less likely to succeed.
It will be interesting to see how this plays out in practice. Although it is not anticipated that there will suddenly be an avalanche of discrimination claims in Guernsey, the very fact that employers will now have to be in a position to potentially have to objectively justify their decisions whenever these kinds of issues will inevitably give rise to a greater degree of caution.
Discrimination by association and equal pay
Aside from the specific right not to be subject to discrimination arising from a disability, there are a number of other additional rights contained within the Ordinance that are not found within the Jersey Law. These are the right not to be subject to discrimination by association and specific rights relating to equal pay and equal treatment.
Discrimination by association occurs when an individual is subjected to less favourable treatment, not because of a protected ground they may have, but rather because of the protected ground that someone they are associated with has. As an example, this would protect someone against discrimination because they may have a disabled child or had a partner of a particular race or religion. For employers who are providing training to their staff, this is an important distinction to highlight as to how discrimination can arise.
The other area is the introduction of a specific right to equal pay and equal treatment. However, it should be flagged that this does not cover the situation where the difference is due to the sex of the parties concerned, as it is not currently one of the protected grounds under the Ordinance. Sex discrimination is dealt with separately under the Sex Discrimination (Employment) (Guernsey) Ordinance 2005 (“the 2005 Ordinance”).
Unlike in the UK, neither Guernsey or Jersey currently have specific equal pay legislation. Instead, claims have to be made around either direct or indirect discrimination on the grounds of sex. Under the 2005 Ordinance, a successful claim is awarded a blanket compensation of up to three months’ pay (or 13 weeks if the employee is paid weekly).
In due course, the intention is to add sex as an additional protected ground and repeal the 2005 Ordinance, meaning that equal pay claims on the grounds of sex could then be pursued. In addition, from 2028 onwards, the intention is to introduce provisions relating to equal pay for work of “equal value”. Once these two changes are made, it is likely that this will have a significant impact on public sector pay in Guernsey, particularly for those professions that are historically low paid for the work undertaken and statistically undertaken by a majority of females – the most obvious example of this will be nursing. How this impacts the private sector will be less clear (especially in financial services) but it will inevitably force employers to focus on issues such as their gender pay gap.
Despite the Jersey Law coming into force in 2014, there remain relatively few Tribunal cases where it has been considered. One of the reasons for this has undoubtedly been due to the limited remedies available to successful employees as compensation is capped at £10,000, which includes both compensation for financial loss and hurt and distress. Given the stress and cost involved for all parties in pursuing or defending such claims, it is unsurprising that the vast majority of claims settle, or are never pursued in the first place.
In contrast to the position in Jersey, the introduction of the Ordinance will allow the opportunity for individuals to pursue claims for much higher compensation awards. If a complaint of discrimination is upheld under the Ordinance (i.e., on the grounds of disability, race, carer status, sexual orientation, and religion or belief), a Tribunal has the ability to award compensation of up to 6 months’ pay (or 26 weeks if paid weekly), together with a payment for injury to feelings, hurt, or distress not exceeding £10,000. Where there is a joined complaint of discrimination and unfair dismissal, the maximum award a Tribunal can make is up to 9 months’ pay (or 39 weeks’ if paid weekly) together with the payment for injury to feelings of up to £10,000.
The exception to this is where the individual has also brought a separate claim(s) for victimisation. In which case, the Tribunal may make a further award of up to 6 months’ pay and a payment for injury to feelings. The worst-case scenario for an employer, therefore, would be an employee seeking a maximum award equivalent to 15 months’ pay and two separate payments for injury to feelings should they decide to bring combined claims of unfair dismissal, discrimination, and victimisation.
Whilst it is not for us to say which approach is better, it means that the potential consequences of a discrimination claim for a Guernsey employer is much more severe than an equivalent claim in Jersey. In practice, we anticipate this will lead to a greater willingness for employees to pursue claims and also make it harder, and costlier, for employers to settle them.
Further guidance on the new Ordinance can be accessed on the new Employment and Equal Opportunities Service Website, which was produced by the States of Guernsey working with Appleby. In addition to the official guides, Appleby have prepared their own short Guernsey Discrimination Guide to the impact of the Ordinance aimed at employers.