#MeToo, Equality and the Future of Employment Law in Guernsey
It was over five years ago that the States of Guernsey passed its disability strategy, with promises that work on drafting a new equality ordinance would take place in 2014, yet here we are in 2019 and it remains perfectly legal to refuse to employ someone simply because they have suffered from a mental health condition.
Whilst this problem remains the reality, it is thought the world of equality has moved on a lot in this time as new challenges continue to come to the fore. Back in 2014, Harvey Weinstein was just another film director. Fast forward five years and the impact of the #MeToo movement has brought issues around equality back into the mainstream. It is therefore encouraging that the States last year formally resolved to implement a comprehensive multi-ground equality law.
Hopefully, sooner rather than later, the law will get passed and when it does it is likely to represent the biggest shake up of employment law in Guernsey since the introduction of the right to claim unfair dismissal. But what will the world of work be like in another five years’ time…
discriminatory dismissals
One of the likely areas that will be reviewed as part of the new equality law is the current use of fixed awards for discriminatory dismissals, which make it very easy to roll out a compromise agreement. If a compensation based regime is introduced, potentially with higher caps on awards, once employees get used to the new system and understand what the new going rate is, it is likely that the cost of paying off an employee is going to make it less attractive, forcing some businesses to address the underlying problems.
Gagging clauses
Linked to this is the use of so-called “gagging clauses”, which prevent employees who have been compromised from telling their story. The courts in the UK have recently had to grapple with these issues in the dispute between Sir Philip Green and the Telegraph, who sought to prevent the publication of allegations of sexual harassment against him by former employees. In the end, Sir Philip had to abandon his action in part because his name had already been leaked via social media so the injunctions sought were largely academic. As part of the new law it would be open to the States to ban the use of such clauses to cover up allegations of harassment. However, even if they don’t, as was seen in the Sir Philip Green case, in the world of social media it is increasingly hard to cover up these kind of allegations.
The ‘banter’ defence in employment law
As an employment lawyer, any time a client says it was just “banter” you know there is going to be trouble. That is not to say there is not room in the workplace for a joke, but increasingly the phrase ‘banter’ is simply being used as an excuse for some appalling behaviour. What was acceptable in the workplace in the past in some instances, is simply not today. I remember a client once telling me that when she started work many years ago in a bank, the manager would greet all the female staff with a pat on the bottom. At the time she thought nothing of it, but today if a manager attempted the same thing I know more than a few women who would respond with a right hook. However, even what is acceptable today will continue to evolve over the next few years, with no doubt greater focus on language, particularly relating to issues around casual homophobia and mental health.
Workplace environment
One key component of the new law will be the introduction of a positive duty to make adjustments to the workplace to remove barriers to opportunity that are experienced by people with disabilities. All too often the focus of the debate centres around physical disabilities and the need to install ramps, but the duty will be far wider and will challenge many of the assumptions people have in relation to hidden disabilities, ranging from depression to dyslexia and from epilepsy and autism. At the minute managers often struggle to understand the conditions, let alone the barriers which those people face. It has been encouraging over recent times that many employers are already undertaking training for staff around mental health issues in the workplace and this trend is set to continue.
Perhaps the only certainty of the future of employment law is change. Over the last few years, we have seen the introduction of equality legislation in Jersey which has been followed by a number of other developments in the field, such as substantially enhanced family friendly rights. Guernsey may feel pressured to follow given that it also tries to sell itself to young families who are seeking a work-life balance.
Originally published in Contact – Guernsey Chamber of Commerce, March 2019.
