MOrsel: New Discrimination Legislation

• Following our previous MOrsel: "States of Guernsey to consider policy proposals for new race, disability and carer discrimination legislation", the States debated and approved the new discrimination legislation on 15 to 17 July 2020 together with some amendments (the New Legislation). 

  The New Legislation will be introduced in two phases; the first covering discrimination on grounds of race, disability, sexuality, religion and carer status, and the second covering age-based discrimination and the modernisation of existing sex discrimination law.

  Although preparation of the New Legislation has been approved, it will still have to be drafted and it is not anticipated that it will come into force until 2022. The States of Guernsey are proposing that during 2021 training will become available for employers on the new responsibilities and any preparation employers should be taking before the New Legislation comes into force.

  We have set out below a few initial issues for employers to consider, but we will present more detailed seminars once the New Legislation has been drafted:

1. Liability for Acts or Omissions of Employees

Under the New Legislation, employers can be jointly and severally liable in respect of the discriminatory actions of an employee. However, if the employer has taken all reasonable steps to try and prevent such discrimination from occurring, then the employer does have a defence.

Taking this into account, employers should consider increasing training given to employees together with producing internal policies on how to prevent discrimination in the workforce. It may be advisable to have short form and long form policies on preventing discrimination in order to make it more accessible and easier to read. The Committee for Employment and Social Security (with assistance from the Employment and Equal Opportunities Service) will develop statutory codes of practice on such things as, the elimination of discrimination and the promotion of equality of opportunity. However, these will be broad in order to cater to a wide range of employers and service providers.

2. Reasonable Adjustments

Reasonable adjustments are likely to be any necessary and appropriate adjustments that are required in order to treat a person equally, provided that they are not disproportionate. The New Legislation will place a positive duty on employers to make reasonable adjustments when requested by a disabled person. This could include, but is not limited to, making information accessible in a different form or modifying equipment. Failure to provide reasonable adjustments is a type of disability discrimination.

Although employers do not have to be proactive in making these changes, consideration should be given to the types of procedures that could be put in place to obtain the relevant information for making reasonable adjustments such as encouraging employees to ask if any adjustments are required when setting up meetings. Employers could also begin to consider making changes that could be made at minimal or no cost.

However, the States of Guernsey are conscious that some adjustments may be expensive so in due course will establish an "Access to Work Scheme" to fund adjustments that would otherwise be disproportionate (such as major building adjustments). It is also worth noting that there will be a five year time delay for any adjustments that would require alterations to physical features of a building.

3. Recruitment

Any advertisements for jobs that imply certain requirements such as nationality (when in fact all that is required is a certain language) will be deemed discriminatory. Recruitment advertisements should therefore be carefully thought out to ensure that all the essential information is included but not in a way that excludes a certain group of people on the basis of a protected ground. If a time comes and it is necessary to ask if any adjustments are needed, these questions need to be asked in a careful way so as to avoid referring to protected grounds in a prohibited way.

Consideration should also be given as to where advertisements are put. Only putting advertisements online may not be accessible to all. It may also be beneficial to offer a contact detail or the option to visit the employer if alternative application procedures are required.

4. Pay

Under phase 2 of the New Legislation it will be discriminatory for there to be pay gaps between people doing the same or substantially similar jobs on the basis of a protected ground. Employers should consider reviewing contracts and terms and conditions of employment and to the extent there are any pay gaps on the basis of a protected ground, consider adjusting salaries accordingly.

5. Complaints

Although the New Legislation has set out a proposed complaints process, emphasis is placed on preventing discrimination from happening in the first place, and where it does happen, focus is on early intervention and resolution of such complaints. This would mean that employees should first raise any issues with their employer. In order for this to be as effective as possible it is crucial that employers have a good relationship with their employees to ensure that if an issue does need to be raised, the employee feels comfortable approaching the employer. Consideration should also be given to putting a policy in place for dealing with complaints, covering such things as documenting complaints and any next steps the employer feels it should take to monitor situations.

If a complaint does need to be brought, it will be similar to the process currently in place whereby the complaint is registered with the Secretary of the Tribunal and the parties are then offered conciliation before measures are taken for the case to be heard by the tribunal.

6. Gender Neutral Language

The provision for gender neutral language was added as an amendment to the original proposal and will mean that going forward, all documents must be drafted so that they are gender neutral. Although this will not apply retrospectively, it is expected that when documents are updated gender neutral language should be used and offensive terms used to describe any protected ground should be replaced.

For more information in respect of the New Legislation, please contact Rachel Guthrie or Hana Plsek