13 August 2019
Sexual discrimination and beyond – what is the future for Guernsey's discrimination laws?
Consultation is under way to introduce multi-ground discrimination legislation in Guernsey, yet one case shows that, at present, employers do not have free rein to discriminate against employees.
For more than 15 years, Guernsey has had the enabling legislation in place to prohibit discrimination on multiple grounds, but to date has only introduced law prohibiting discrimination on the basis of sex, marital status, gender reassignment and since 2016, pregnancy (referred to hereafter cumulatively as "Sexual Grounds"). Active consultation is currently underway with a view to the States of Guernsey introducing multi-ground discrimination legislation and whilst the devil will always be in the detail of the proposals, we do know that the law will be based on a hypothetical "straw man" and that it will take its inspiration from across the globe, and in particular from a combination of the Irish and Australian discrimination regimes. Subject to current policy proposals being finalised and approved by the States of Guernsey following its April 2020 meeting, it is anticipated that new discrimination law will be introduced prohibiting multi-ground discrimination in the workplace (and more generally) no later than 2022.
However, until that time, discrimination claims can only be brought by employees on Sexual Grounds. A recent case involving Harlequin Hire Cars Limited (trading as Europcar Guernsey) has highlighted that whilst claims for discrimination are limited to those claims on Sexual Grounds, employers do not have free rein to discriminate against employees – not least because such conduct can amount to a fundamental breach of the employment contract and entitle an employee to resign and claim constructive unfair dismissal.
In Mollett v Harlequin Hire Cars Limited , Ms Mollet claimed that she had been constructively unfairly dismissed and subjected to sexual discrimination in the workplace before her dismissal. In particular, she asserted that the clothes she was required to wear at work were discriminatory and that she had been subject to racially abusive language with a gendered element.
Ms Mollett, who was ultimately unsuccessful in both of her claims, alleged that male employees of the car hire company where she worked (Europcar) were treated more liberally than female employees. She said, among other things, that 'the boys got away from wearing a uniform' and that this was discriminatory. The Tribunal, however, found that the comparison being made between 'client facing' staff such as Ms Mollett and 'backroom' employees such as her male colleagues was not the appropriate test. Rather, it was a question of whether a hypothetical male comparator would need to wear the uniform if he were 'client facing'. The Tribunal was satisfied that the 'same rigour' would be applied in enforcing that dress code equally across the genders.
The Tribunal noted that the abusive comments alleged would have had significant weight towards Ms Mollet's case for both sexual discrimination and constructive unfair dismissal; however, they could not find sufficient evidence to prove that such comments were actually made.
Whilst the teeth of discrimination laws are not as sharp in Guernsey (yet) as in other jurisdictions, and while gender, gender reassignment, marital status and pregnancy are currently the only protected characteristics recognised in Guernsey law, the Mollet case demonstrates that discriminatory behaviour can still justify a claim and result in legal action – just under the guise of constructive unfair dismissal rather than discrimination. Employers need to be mindful of their actions – because on the one hand Guernsey may appear to be a less prescriptive jurisdiction when it comes to discrimination (with limited protected characteristics and three months compensation limit) but on the other, discriminatory conduct can amount to a fundamental breach of the implied term of trust and confidence where the financial compensation is six months' pay.
A significant majority of employers in Guernsey already have in place discrimination policies which prohibit discrimination in the workplace, and whilst the legal landscape will obviously change dramatically when the new discrimination legislation is ultimately introduced and employers will need to be even more vigilant in ensuring that they provide a workplace that is free of discrimination of any kind, it should not come as a massive shock to Guernsey employers. Guernsey has a unique opportunity to create an equality and discrimination law that is tailored to the local Guernsey economy and we will be watching this space carefully to see how the proposals unfold.
An original version of this article was published in the Taylor Vinters International Employment Law Update, July 2019.
© Carey Olsen 2019.