At first glance the two laws may look broadly similar, they both cover the same basic forms of discrimination, being direct, indirect, harassment and victimisation. They also are based around a series of protected characteristics, including race, sex, sexual orientation, gender reassignment, pregnancy and maternity, age and disability – albeit the proposed Guernsey law does have a few other grounds. However, beyond that superficial similarity, the approach that Jersey took and the approach that Guernsey is now proposing to take is markedly different. To take one example, Jersey currently caps compensation in respect of discrimination claims at GBP10,000 overall and only GBP5,000 of that can relate to injury to feelings. The consequence of this has been that whilst there have been a number of claims brought in Jersey, the majority of those have actually involved smaller local employers, rather than against those in the finance sector who tend to employ the higher earners. Under the proposals put forward in Guernsey, the potential caps range from GBP5,000 up to GBP100,000 (or even potentially no upper limit) on either financial loss or injury to feelings, with the likelihood it is going to be towards the top end of that scale. This inevitably is going to make it more appealing to litigate in Guernsey given the remedies available.
Certainly the most contentious element of the proposals in Guernsey is the extent of the definition of a disability. In short, under the proposals any condition, disease, illness or impairment, no matter how brief, nor regardless of its level of impact on the individual, will amount to a disability. To place that into context, whilst the obvious disabilities and conditions that people would traditionally expect to be covered will be caught, so would all forms of stress or anxiety, and even arguably if someone is simply hungover. It should be remembered that this is only a public consultation and the reason for this is to allow the States of Guernsey to address areas where the proposals are not right. However, this proposal is far broader than Jersey’s equivalent definition which only captures a “long-term physical, mental, intellectual or sensory impairments which can adversely affect a person’s ability to engage or participate in any activity” and is expected to last for six months. For those employers who operate across the Channel Islands, it is potentially going to lead to the situation where you have employees with the same issues in the two different jurisdictions being treated differently, which given the purpose of the legislation, is wrong.
It is easy to perhaps say that pan-island employers should just harmonise their standards up to the Guernsey level, or that Guernsey should have just copied the Jersey model, however, this whole topic feels like a missed opportunity for the two islands to work together. It is now 2 years since Emma Martins announced that she would be stepping down as the pan-island information commissioner, one of the few such pan-island roles that existed at the time. As has been well documented Emma Martins was subsequently appointed as the Guernsey Data Protection Commissioner, with Jersey then appointing its own equivalent, again with different laws. Equality was perhaps the ideal topic for the two islands to come together and establish a pan-island Equality Rights Organisation and Tribunal System that could operate across the jurisdictions, given the similarities between business sectors as well as the number of pan-island employers. Instead, as with data protection, it looks likely that businesses are yet again simply going to have deal with the inequalities in the system that our two equalities laws give us.