The headlines in 2020 have been dominated with the COVID-19 pandemic but there was another story which hit the headlines globally which was the Black Lives Matters campaign. This led to a lot of people thinking about discrimination to a greater extent than before. Locally we also had discrimination hit the headlines with the States of Guernsey unanimously approving the proposals for new discrimination legislation.
In this article John Ioannou-Droushiotis provides an overview of the proposals that have been passed, and the considerations and preparations employers could be taking now and for the future.
The legislation, being put to be law officers to be drafted, will be introduced in two phases. The first phase, aiming to be in force by 2022, will cover the protected grounds of disability, carer status and race, and after an amendment being lodged and passed, the further grounds of sexual orientation and religion will also be included.
The second phase, will include age discrimination and the modernisation of the sex discrimination ordinance. Later on, down the line the right for equal pay for equal value in respect of sex will come into effect as will discrimination in education.
This was a change from the original big bang approach of all grounds coming into force at once. The phasing will afford employers and organisations the opportunity to understand the grounds and implement measures to ensure that they adhere to the legislation and remain a discriminatory aware organisation.
The forms of discrimination that will be prohibited will be:
- Direct Discrimination,
- Discrimination by association,
- Discrimination arising from disability,
- Indirect discrimination, and
- Denial of a reasonable adjustment for a disability.
Other prohibited actions proposed for the new legislation will include:
- Harassment or sexual harassment of a person,
- Victimisation of a person,
- Publication of discriminatory advertisements,
- Causing, instructing or inducing another person to undertake a prohibited/discriminatory act, and
- Failure to provide equal pay for equal work.
Up to now protection against discrimination has existed in Guernsey in relation to sexual discrimination in the workplace. The new law will continue to cover employment but be extended to other areas of life where people will be able to benefit from the protection including:
- The provision of good, services and transport,
- The provision of accommodation,
- The provision of education, and
- The membership of clubs and associations.
Another new development includes the transformation of the Employment Relations Service to the Employment and Equal Opportunities Service (EEOS).
Employers’ considerations and preparations
There will be no requirement for a qualifying period for someone to raise a claim of discrimination as it is what is called a ‘day one right’ in employment. Employers are to be minded of this as employees will not need 1 years’ service to raise a claim.
You may be thinking that it is somewhat is the future and there are other concerns to deal with at present. However, there is quite a lot to think about and implement before it comes into force. Employers should start thinking about:
- Job advertisements
- Access to employment – including recruitment processes and implementing reasonable adjustments
- Terms and conditions of employment, including company handbooks, policies and employee related procedures, ensuring gender neutral language is used
- The manner in which people are promoted, paid or how posts are classified
- Pensions and benefits that are provided and the structure of any scheme
- Ensuring your internal grievance and complaints mechanisms are up to date given the emphasis on resolving issues before a complaint is made to the Tribunal.
Employers will also be liable for discriminatory actions taken by their employees should it be found that the employers did not implement policies and other measures such as training to prevent it. Having these in place will provide employers with some defense should a claim be raised.
Discrimination and Reasonable Adjustments Information Session – 22 September 2020
One of the hot topics in the run up to the debate was the definition of disability and the requirement to make reasonable adjustments with some stakeholders indicating they would support the Jersey definition. The definition of disability, which has been amended from that originally proposed, includes a time frame for the minimum period the person with a disability is required to have a condition – 6 months – and a definition of what constitutes an impairment to provide further clarity. Therefore, someone would fall within this protected ground if they have one or more long-term physical, mental, intellectual or sensory impairment which has been in place for a minimum of 6 months.
The new legislation will place a positive duty on employers and organisations to provide reasonable adjustments to employees, customers and service users when requested, to afford them with an opportunity to be included where they would otherwise have been excluded.
The assist employers to prepare for the forthcoming legislation Focus are pleased to be joined by Guernsey Employment Trust on 22 September to present an interactive information session on reasonable adjustments and a brief overview of the legislative proposals that have been agreed. The information session will provide an overview of the barriers and challenges faced by disabled people; offer some practical guidance on what is considered reasonable; look at what employers should consider; provide some examples and testimonials, and give an overview of the legislation.
If you would like to:
– Update your knowledge on the progress of local discrimination legislation
– Understand Reasonable Adjustments; what it means, what to consider and examples
– Improve management skills and increase confidence in addressing the issues in relation to employment and disability
then click on the following link to reserve your place at this free event – https://www.eventbrite.com/e/discrimination-and-reasonable-adjustments-employer-considerations-tickets-115854525003