05 October 2021
Guernsey discrimination law update: Where are we now?
The States of Guernsey's vote last July, in favour of a Policy Letter entitled "Proposals for a New Discrimination Ordinance", resulted in much jubilance, with human rights campaigners literally dancing in the streets outside of the Royal Court building. That vote set the wheels in motion for a significant change in the landscape of equality legislation in Guernsey. More than a year on, we take stock of where we are now.
We are often asked to opine on the status of anti-discrimination law on the island, as many believe that it does not exist. In fact it does exist, albeit to a limited extent: The Sex Discrimination (Employment) (Guernsey) Ordinance 2005 renders it unlawful for employers to discriminate against employees and job applicants on grounds of sex, marriage or gender reassignment. It is also automatically unfair, under different legislation, to dismiss an employee on grounds of pregnancy and maternity, or to subject an employee "to a detriment" on a ground related to maternity leave. The Ordinance has been in force since 2006.
Some 15 years later, we are approaching the extension of legal protection for the characteristics of: disability, carer status, race, sexual orientation, religious belief and age, together with a right to make a claim of equal pay. The new regime will go beyond employment and apply to the provision of goods and services, as well as education. Exciting intentions indeed.
Following a consultation, it is expected that the first tranche of protections will appear in a second discrimination Ordinance in January 2022. What, therefore, are the important priorities for employers at this juncture? In our view, there are three:
In the interests of best practice, many employers already ensure equivalence of rights between Guernsey and the UK, and will therefore have anti-discrimination policies in place. However, given that the precise details of the incoming regime will be unique to Guernsey, it is essential to carry out an equality audit; namely, a review and assessment of the adequacy of any existing equal opportunities policies.
An audit should consider whether there is a risk that policies or practices could result in unintended/unconscious (or indirect) discrimination. Ensuring that policies are future proofed is important, particularly in the light of COVID related considerations arising in respect of disabled workers and pregnant workers.
Comprehensive and regular employee training which is aimed at preventing harassment and setting clear expectations around unacceptable employee conduct, will assist an employer's defence that reasonable steps have been taken to prevent discrimination in the workplace. An added bonus of investing in such training is that this may well enhance an employer's reputation. The incoming changes present an opportunity to reflect on training currently offered and to plan for the future.
The employer's duty to make reasonable adjustments for employees and job applicants will be largely re-active rather than proactive. However, it is advisable to think ahead about what reasonable adjustments could be accommodated in particular roles.
The new Ordinance will recognise that reasonable adjustments ought to be proportionate to the relative size and resources of the business. An early assessment of a business's capacity to implement adjustments will stand an organisation in good stead in respect of its ability to deal with any future requests in a fair and balanced way. There is also no need to wait for the Ordinance to take effect to get started – offering reasonable adjustments today can only reflect positively on an employer's workplace values.
Employment law experts Natasha Newell and Lois Madden are highly experienced in discrimination law and have a significant track record of providing advice and representation to employers and employees in courts and tribunals both in the UK and Guernsey. They recently appeared before the Employment and Discrimination Tribunal (in Hitchins vs. Babbé LLP) and secured for their client Guernsey's first ever (and the maximum) award arising from sex discrimination in relation to pay.
An original version of this article was first published by Business Brief, September 2021.