DRAFT DISCRIMINATION (JERSEY) LAW 201-
ACCOMPANYING REPORT
BACKGROUND
Summary
A decision of the States of Jersey in July 2011[1] transferred the responsibility for preparing discrimination legislation to the Minister for Social Security (the ‘Minister’) and directed the Minister to lodge a draft Discrimination Law with the States.
Draft legislation had been developed during 2005 to 2010 by the former Chief Minister, and subsequently by the Minister for Home Affairs. A great deal of work was undertaken by those Departments in preparing draft legislation and undertaking extensive public consultation. The history of the development of the principles and the legislation is set out at Appendix 1.
Since that time, the UK’s Equality Act 2010 (the ‘Equality Act’) came into force which consolidated a number of pieces of discrimination and equality legislation. The Minister reviewed Jersey’s draft discrimination law (dated April 2010) with the intention of taking into account any important changes introduced via the Equality Act, as well as Guernsey’s experience of sex discrimination legislation[2], whilst keeping the legislation as simple as possible.
The proposals set out in the draft Discrimination (Jersey) Law 201- (the ‘draft Law’) have also been refined as a result of consultation with stakeholders during 2012, as summarised at Appendix 2.
The draft Law is an overarching law that provides a framework for protection against discrimination and it includes ‘race’ as the first protected characteristic. It is considered that introducing protection against discrimination on the grounds of race does not entail the same complexity as sex, age or disability discrimination. Further consultation will be undertaken with stakeholders before introducing Regulations relating to other characteristics.
Why do we need a discrimination law?
In jurisdictions worldwide, it is taken for granted that laws exist to protect people against discrimination. There has been consistent and overwhelming support for the introduction of legislation in Jersey to address discrimination issues generally.
The introduction of discrimination legislation will have wide-ranging implications for Jersey as a whole and for the States of Jersey, both as an employer and as a provider of services. However Jersey must have the necessary legislation in place in order to command respect internationally as a jurisdiction that promotes modern standards of respect for individuals’ rights and equality.
Jersey has obligations under a number of international conventions and covenants to ensure protection from discriminatory behaviour:
- The International Covenant on Civil and Political Rights (ICCPR) [3] requires legislation that prohibits discrimination and guarantees effective protection against discrimination.
- The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)[4] includes a requirement to prohibit race discrimination in the enjoyment of certain rights.
Introducing the draft Law will help Jersey to achieve compliance with the requirements of the ICCPR and the ICERD. In failing to prohibit discrimination of this sort, Jersey falls short of widely recognised international standards.
Discrimination legislation is also essential in terms of a number of other international treaties, including; the Convention on the Elimination of All Forms of Discrimination Against Women[5], the International Convention on the Rights of Persons with Disabilities[6], the United Nations Convention on the Rights of the Child[7] and the International Covenant on Economic, Social and Cultural Rights[8].
Existing protection is very limited and relates only to certain circumstances. For example, the Sex Disqualification (Jersey) Law 1957 provides that a woman cannot, by reason of her sex or marital status, be excluded from a profession or vocation or be exempted from liability to serve as a juror. The Human Rights (Jersey) Law 2000 gives effect to Article 14 of the European Convention on Human Rights, which prohibits discrimination in relation to the enjoyment of Convention Rights. This protection applies only where there is discrimination in the way that the enjoyment of another Convention Right is secured and a breach of Article 14 is only actionable against the State and public authorities as defined by the Human Rights (Jersey) Law 2000[9].
Is there any evidence of discrimination in Jersey?
Proposals to introduce anti-discrimination legislation have been widely supported, however, during consultation, some stakeholders have requested evidence that discriminatory behaviour exists in Jersey and evidence that legislation will remove or reduce inequalities. It is not realistic to expect the draft Law to prevent all discrimination or eliminate inequality entirely. What legislation can realistically achieve, however, is to provide legal protection where a person has, for example, been refused a job, turned away from a restaurant or prevented from renting a house because of their race.
In the absence of legislation that prohibits discriminatory acts from taking place, it is difficult to assess the prevalence of unacceptable discriminatory acts. Without a legal benchmark against which behavioural standards can be assessed and with no recourse to justice or compensation, it is probable that acts of discrimination do not currently come to light. However, there is some evidence that discrimination occurs in Jersey. The following sections summarise statistics and data relating to discrimination in Jersey.
Jersey Annual Social Survey
The States of Jersey Statistics Unit included questions about discrimination in the 2012 Jersey Annual Social Survey (JASS). The findings included the following:
- A quarter (25%) of adults reported having been discriminated against in the previous 12 months.
- Nationality - Nine percent of adults reported that they had been discriminated against on grounds of nationality in the previous 12 months. Thirty-seven percent of those born in Portugal or Madeira, 28 percent of those born in Poland, 21 percent of those born in another European country and 6 percent of those born in Jersey or elsewhere in the British Isles reported having been discriminated against in Jersey on grounds of race or nationality in the previous 12 months.
- Age - Nine percent of adults reported that they had been discriminated against on grounds of age.
- Gender - 9 percent of women and 2 percent of men reported having been discriminated against on the grounds of gender.
- The most frequently cited place at which discrimination was reported to have occurred was at work (36% of those who reported being discriminated against), followed by in States departments or parishes (27%) and when applying for a job (23%).
- For those who reported experiencing discrimination (on single grounds) at work, discrimination was reported to be on grounds of race for a third (34%), and on grounds of age for a fifth (18%).
- For those who reported experiencing discrimination (on single grounds) when applying for a job, discrimination was reported to be on grounds of age for half (51%), and on grounds of race for a fifth (22%).
- For those who reported experiencing discrimination (on single grounds) at States departments or parishes, discrimination was reported to be on grounds of marital status for a quarter (28%), age for a sixth (17%) and race for a sixth (16%).
Jersey Citizens Advice Bureau
The Jersey Citizens Advice Bureau (CAB) records data about client contacts. Where a client feels that they have suffered discrimination, or seeks advice or information relating to discrimination, CAB staff record this as a potential discrimination issue. It should be noted that the grounds for the perceived discrimination (e.g. race, age, sex, disability) are not recorded and the discrimination may or may not be an act of discrimination that is prohibited by the draft Law. During 2012, CAB recorded 46 issues relating to discrimination (see Table 1). The majority of these (43.5%) related to employment, which reflects the experience in the UK; that complaints of employment related discrimination are more common than complaints of discrimination in other areas. When the draft Law is in force, enquiries related to discrimination in all areas are expected to increase.
Table 1 – Discrimination issues recorded by CAB during the year 2012
Employment | 20 |
Relationships | 9 |
Legal | 4 |
Housing | 3 |
Other | 3 |
Benefits | 2 |
Consumer | 2 |
Financial | 1 |
Health | 1 |
Tax | 1 |
| 46 |
Jersey Advisory and Conciliation Service
The 2011 Annual Report of the Jersey Advisory and Conciliation Service (JACS) reported that one area of on-going concern has been the number of JACS clients who believe they are suffering from bullying or harassment at work. JACS dealt with 238 bullying-related issues in 2010, 280 issues in 2011 and 260 issues in 2012. JACS believes that, whilst a discrimination law will not directly address the question of bullying, until Jersey introduces protection against discrimination, including protection from harassment, the extent of and damage caused by bullying will not be tackled.
During 2012, JACS recorded 47 clients with issues relating to discrimination. Nine issues were recorded as race discrimination, 10 as sex discrimination and the remaining 28 were recorded as “general” which includes discrimination on other grounds, including age, disability and religion.
Jersey Community Relations Trust
Workplace surveys undertaken by the Jersey Community Relations Trust[10] have shown that age, sex, disability and race feature largely in bullying and harassment.
During 2011, the Jersey Community Relations Trust (JCRT), in conjunction with the Jersey Employers Network on Disability, surveyed local employers to find out how they would like to see discrimination legislation being introduced, if at all. Sixty organisations from various sectors responded to the survey with businesses employing 100 employees or more representing the majority of responses received. The majority of local employers surveyed (82%) believed that there is a need for discrimination legislation and supported its introduction. Employers considered the characteristics of age, nationality, gender and race to be the most important issues to be covered by legislation and just over half (52%) favoured the idea of characteristics being brought into force in stages rather than simultaneously.
THE DRAFT LAW
What is discrimination?
The draft Law defines direct discrimination (Article 6) and indirect discrimination (Article 7):
- A person directly discriminates against another person if he or she treats that person less favourably than another person because of a particular characteristic.
It would, therefore, be direct discrimination for an employer to refuse to employ someone because he or she was of Portuguese descent. It would also be direct discrimination for a landlord to refuse to lease out a property because the prospective tenants were Polish.
In either of these scenarios an exception might apply, for example, if the discrimination was necessary to comply with other legislation in Jersey, the action would not be discriminatory.
- A person indirectly discriminates against another person where they apply a provision, criterion or practice, which the person cannot show to be a proportionate means of achieving a legitimate aim, that disadvantages (or would, if applied, disadvantage) people with a particular characteristic.
An employer who specifies that job applicants must speak fluent English could potentially face a claim because the requirement would indirectly discriminate against people from countries where English is not generally spoken. However, there would be no discrimination if the employer could show that the requirement to speak English was proportionate in the circumstances because it met a business need, such as a requirement for employees to communicate effectively with predominantly English speaking customers.
It could also be indirect discrimination to require a job applicant to have attended University in the UK. In most cases, it would be unlikely that such a requirement could be justified. The employer should instead focus on who is genuinely the best person for the job, irrespective of where he or she was educated.
Avoiding direct and indirect discrimination never means that an employer is prevented from offering a job to the best qualified or most suitable candidate.
Victimisation (Article 27) and Harassment (Article 28) are also defined as forms of discrimination:
- Victimisation – the draft Law is intended to protect those who raise a complaint of discrimination (or assist others in doing so) from suffering less favourable treatment as a result. An employee who is dismissed because he or she queries whether a promotion decision was based on race will be able to complain of victimisation as if the dismissal were itself an act of discrimination.
Protection against victimisation does not extend to false allegations made in bad faith. An employee who deliberately makes false allegations of racial harassment, for example, can still be dismissed for gross misconduct.
- Harassment is unlawful in the same situations (such as the workplace or the provision of goods and services) as those in which direct and indirect discrimination are prohibited. Harassment involves unwanted conduct which relates to a protected characteristic. A wide variety of conduct can amount to harassment, the test being whether it violates the dignity of the victim or creates, for example, an intimidating or offensive environment.
Typical examples of harassment include subjecting an individual to racial abuse or other hostile treatment based on the victim’s race or ethnic origin. The draft Law makes it clear that conduct will only be harassment if it is sufficiently serious that a reasonable person could regard it as having the prohibited effect.
How is the protected characteristic of race defined?
Race is currently the only characteristic that is protected under the draft Law. A person has the protected characteristic of race if they fall within a particular racial group. We all belong to one or more racial groups, so the draft Law protects everyone. Schedule 1 of the draft Law provides that ‘race’ includes;
• Colour
• Nationality
• Ethnic origin
• National origin, which includes being of Jersey origin.
A ‘racial group’ is a group of people who have or share a colour, nationality, ethnic origin or national origin. For example, a racial group could be ‘British’ people, or it could be ‘non-British’ people. People often belong to a number of racial groups, for example, a white, British person, who is a Jersey resident but was born in Scotland.
Nationality is about a person’s citizenship of an existing or recognised state through birth or naturalisation. National origin is distinct from nationality; there must be identifiable elements, both historic and geographic, which indicate the existence (or previous existence) of a nation. For example, as England and Scotland were once separate nations, English and Scottish people are regarded as having separate national origins.
An ethnic group is usually distinguished from its surrounding community by certain characteristics including a long shared history (for example, Sikhs) and a cultural tradition of its own. An ethnic group may also have a common geographical origin, language, literature, social customs or religion.
In what areas is race discrimination prohibited?
Parts 3 to 5 of the draft Law set out the following areas in which discriminatory acts are prohibited:
- Paid work including recruitment, the terms on which employment is offered and the termination of employment (Articles 9 and 10)
- Contract workers (Article 11)
- Partnerships (Article 12)
- Professional or trade organisations (Article 13)
- Professional bodies (Article 14)
- Vocational training (Article 15)
- Employment agencies (Article 16)
- Voluntary work (Articles 17 to 20)
- Education (Article 21)
- Goods, facilities and services (Article 22)
- Access to and use of public premises (Article 23)
- Disposal or management of premises, e.g. letting property (Article 24)
- Clubs (Article 25).
Are there any exceptions?
The draft Law (Schedule 2) provides certain exceptions; these are instances where an act that might otherwise amount to prohibited discrimination will not be treated as such under the draft Law.
Some of the exceptions are likely to apply to all protected characteristics, for example, acts done under legislative or judicial authority (Schedule 2, Part 1, Paragraph 1), whereas other exceptions will be relevant to specific characteristics, for example, it will not be a prohibited act of race discrimination to recruit someone of a specified nationality to play in a national football team (Schedule 2, Part 2, Paragraph 6).
Further exceptions are likely to be introduced with each set of Regulations that introduces a new protected characteristic. For example, when protection against sex discrimination is introduced, there is likely to be an exception relating to pregnancy and maternity to ensure that employers can discriminate appropriately (in favour of women) so as to make provision for their needs.
How will the law be enforced?
The draft Law reforms the Employment Tribunal as the Employment and Discrimination Tribunal (the ‘Tribunal’). The Tribunal will have the jurisdiction to hear complaints about acts of discrimination that occur in all areas, whether in the workplace or otherwise (Article 36). An amendment to the Employment Tribunal (Jersey) Regulations 2005 will be prepared to ensure that the Tribunal’s constitution, membership and administration will reflect this change.
A complaint must be made to the Tribunal within 8 weeks of the act of discrimination complained of. Where there is a series of discriminatory acts, the complaint must be made within 8 weeks of the last act (Article 37).
All complaints will be referred for conciliation or mediation, if both parties agree:
- If the complaint relates to employment, the Secretary to the Tribunal (the ‘Secretary’) will refer it to JACS for conciliation (Article 38). The role of Secretary is the responsibility of the Judicial Greffier and is currently fulfilled by two part-time officers who are employed by the Judicial Greffe (The Registrar of Appeals and Tribunals).
- If the complaint does not relate to employment, the Secretary will refer it to a person who is qualified in conducting conciliation or mediation (Article 39). The intention is that the Community Mediation service will be utilised, which is arranged by the Jersey Legal Information Board and administered by CAB.
If the parties do not agree to conciliation, or if conciliation is not successful, a complaint is referred to the Tribunal (Article 41). A complainant will need to demonstrate to the Tribunal that, on the balance of probabilities, he or she has been discriminated against.
What remedies will be available?
If the Tribunal finds that a complaint has been proved, it may do any, or all, of the following three things (Article 42);
- Make an order declaring the rights of the complainant and the respondent;
- Order compensation of up to a maximum of £10,000 for any financial loss and up to a maximum of £5,000 for hurt and distress, subject to an overall limit of £10,000 covering the entirety of the award of compensation; and
- Recommend that the respondent takes certain action within a specified period of time for the purpose of reducing the adverse effect of the act of discrimination on the particular complainant.
It was suggested by respondents during the latest consultation, as well as during consultation undertaken in 2006, that the £10,000 limit of compensation is too low. According to the UK Employment Tribunal and Employment Appeal Tribunal statistics for 2011-2012[11], the median compensation awarded by UK Tribunals in cases with race discrimination jurisdictions was £5,256 and in 70 percent of cases the compensation was less than £10,000. The Minister is satisfied with the proposed cap on compensation of £10,000 as an appropriate starting point, but it may be subject to review in the future. The States may, by Regulation, amend the maximum level of compensation payable or introduce different levels of compensation for financial loss, or for hurt and distress.
What is the timetable for implementing the law?
The Minister has agreed to a request of the Health, Social Security and Housing Scrutiny Panel that the draft Law be listed for States debate in mid May 2013 in order to allow the Panel time to conduct a review of the draft Law.
Subject to the States adopting the draft Law in May 2013 and Privy Council assent being granted, an appointed day act will be required to bring the law into force. Anticipating up to one year for Privy Council approval means that legislation to introduce protection against race discrimination is likely to be proposed to come into force in the second half of 2014. This will give sufficient time for employers, organisations and other individuals to make any necessary preparations.
Regulations for other protected characteristics will be introduced in a phased approach. The Minister expects that protection from discrimination is likely to be proposed in the following order:
- Race
- Sex
- Age
- Disability
This enables a consistent and equitable approach to different types of discrimination and simplifies the complexity that has resulted in other jurisdictions as a consequence of having separate and different laws. This will also enable full public consultation to be undertaken at each stage and to spread any potential administrative burden for employers, organisations and other individuals over a period of time. The Minister is committed to ensuring that the legislation is extended in a way that is sympathetic to the difficulties faced by businesses, particularly small businesses.
The proposed phases take into consideration the priorities determined by the States; the need to reflect the proportion or number of people likely to be affected by the particular protection; the anticipated cost implications of compliance and the importance of co-ordinating the work with other States’ policies as far as possible. For example, protection against age discrimination would be prepared in co-ordination with changes to the State pension age and protection against sex discrimination would be prepared in conjunction with family friendly legislation.
The Proposition adopted by the States in July 2011 (P.118/2011, as amended), required that within two months of the discrimination law being registered in the Royal Court, draft Regulations covering disability, age, sex and race must be lodged ‘au Greffe’. The Minister believes, however, that further Regulations should not be taken to the States within two months of the primary law being registered. It is likely that, once the draft Law is in force, lessons will be learned from the characteristic of race. Further Regulations should be therefore be drafted in stages with the benefit of that experience, rather than rushing to prepare and lodge three additional sets of Regulations in 2013, when no States commitment was given to a date of enactment for those Regulations.
What advice and training is available?
It is vital that the legislation is properly understood and implemented. During early consultation, the need for training was highlighted and, in particular, the potential cost to business of ensuring that employees are aware of their responsibilities.
Where a discrimination issue relates to employment, JACS will provide the advisory service. Where a discrimination issue does not relate to employment, such as education, housing or services, an advisory service will be provided by CAB.
In anticipation of legislation coming into force, JACS has been providing public and in-house training on the principles of employment related discrimination since 2008. Many organisations have supported these courses; approximately 900 delegates have taken advantage of this training to date. JACS noted in its 2011 Annual Report that “attendance has given managers an opportunity to explore the positive benefits of a non-discriminatory approach to the employment of their staff” and noted that “many employers already set high standards that are reflected in their profitability, low staff turnover and their overall success.”
The Minister is confident that responsible employers will not have to devote time and money to complying with the law. Many larger business organisations already have the necessary procedures in place to avoid discriminatory practice. Whilst consultation demonstrated that employers are concerned about introducing new employee rights in a difficult economic climate, it did not reveal any practical difficulties that avoiding race discrimination entails. Employer’s concerns related primarily to dealing with the cost of Tribunal claims. However the potential cost is intentionally restricted in terms of the compensation that is available.
Literature and training on general discrimination issues are already available and detailed guidelines will be provided by JACS and CAB prior to the draft Law coming into force. JACS noted in its 2011 annual report that it “appreciates the impact new legislation has, especially on small businesses, and will actively update its training programmes to help both employers and employees understand the implications and to provide timely and impartial assistance in interpreting the Laws.”
JACS will continue to provide public training courses on the draft Discrimination Law and the Minister has allocated funds so that JACS can provide its public discrimination law course at no cost to delegates during 2013 and 2014.
Financial and manpower implications
Policy - It is anticipated that, in 2013 and 2014, the cost of continuing to develop and prepare legislation for further characteristics and making the necessary preparations for the enactment and enforcement of the draft Law will be a maximum of £100,000 in each year.
Advice, conciliation and enforcement - In 2015, costs are estimated to be £200,000 which includes the full year cost of enforcing the Law via the Tribunal (including Tribunal members pay for additional hearings and the increased usage of the service generally), the advisory services provided by JACS and CAB, and the costs of continuing to develop and prepare legislation for further characteristics. In subsequent years, enforcement and advisory costs are expected to increase slightly as each new characteristic is introduced, up to a maximum cost of £300,000 once all of the Regulations are in place.
The above costs will be met from within resources approved in the Medium Term Financial Plan (MTFP) and carry-forward funds.
States Human Resources - There is an expectation that the States will be an exemplar employer. During 2013 and 2014, data will be collected for the entire States workforce to provide a comprehensive record of the ethnic and racial background of States employees. A comprehensive training programme will be provided to all staff to support non-discriminatory behaviour. States human resources policies will be assessed and re-written to take into account the protected characteristics. Whilst there will be costs associated with these exercises, they will be undertaken as part of the Public Sector Reform programme.
The potential cost to the Human Resources Department in defending discrimination complaints made to the Tribunal against the States will be met from within existing resources initially and monitored as further characteristics are introduced.
It is difficult to predict the future costs in terms of the Law Officers’ Department time. In addition to the cases which reach the Tribunal and complaints which can be dealt with without reference to the Tribunal, there are likely to be other requests for legal advice on the interpretation of the Law from States Human Resources and other Departments. This advisory work may be expected to be more significant in the first year or so after the Law comes into force and that pattern may be repeated after the Law is extended to cover additional grounds for discrimination.
Any costs which cannot be met from existing cash limits, including growth approved in the MTFP 2013-15, will need to be funded by the Council of Ministers from Contingency.
Manpower – It is anticipated that the Judicial Greffe (which is responsible for the administration costs of enforcing the draft Law via the Tribunal) will require one additional part-time administrative post, at a maximum of Grade 8, to deal with the additional Tribunal workload and hearings from 2015. One full-time equivalent fixed-term administrative post (at a maximum of Grade 6) is expected to be required to collect data on the States workforce during 2013 and 2014. The Law Officers’ Department will try to manage the extra work within existing manpower resources; but should the extra work involved exceed that capacity, extra manpower would be requested.
Appendix 1 - Summary of the history of the development of protection against discrimination in Jersey
1991 – 1993: Codes of Practice: A number of Codes of Practice were introduced by the States and States Committees dealing particularly with the issue of sex discrimination, sexual harassment and maternity rights to establish guidelines and raise awareness of what amounted to acceptable practice.
1998: Employment legislation: In 1998, the former Employment and Social Security Committee issued “Fair Play in the Workplace” which consulted on a range of topics connected with the workplace, including discrimination. The research culminated in the Committee taking a proposal to the States on Employment Legislation (P.99/2000, adopted by the States) which advocated that issues surrounding discrimination in the workplace should be dealt with through a separate all-encompassing discrimination law to be championed by the then Policy and Resources Committee.
1999: Race Relations Working Party: The former Legislation Committee established a Race Relations Working Party which consulted on the issues of race relations and racial hatred in 1999.
November 2000: Racial Discrimination Forum: The Racial Discrimination Forum, led by the then Policy and Resources Committee was established. Members were from the public and private sectors and their work culminated in the States adopting a Proposition to set up the Jersey Community Relations Trust (P.120/2003).
March 2002: Legislation Committee: The Legislation Committee lodged a proposal for the preparation of a Race Discrimination Law (P.32/2002), based upon the recommendations of the Working Party (published as R.C.46/1999). In May 2002, the States voted overwhelmingly in favour of the proposal. However, the Committee then reviewed the lack of legislation in Jersey aimed at eliminating discrimination on grounds other than race. It concluded that it would be desirable to take the opportunity to bring forward legislation that would promote not only the elimination of racial discrimination, but also, other forms of discrimination.
2004: Jersey Advisory and Conciliation Service (JACS): JACS was established as part of the phased development of employment legislation and opened in 2004. The service advises employers and employees on employment issues.
2005: Jersey Community Relations Trust (JCRT): The JCRT was established in 2005. It aims to “eliminate discrimination on any ground … and to encourage mutual respect among all people in the Island”.
July 2006: First consultation on the draft Law: The Chief Minister’s Department consulted on draft legislation and proposed ‘race’ as the first protected characteristic in furtherance of the commitment made by the States in 2002. Forty-one responses were received, of which 100 percent were in favour of introducing a law to protect against discriminatory acts. There were some requests for greater clarification or adjustment to certain sections of the draft legislation and these were taken into account in the preparation of a further draft of the Law.
2007: Ministerial responsibility: Responsibility for the draft Law was transferred from the Chief Minister to the Minister for Home Affairs.
September 2007: JCRT discrimination conference: The JCRT held a major Island-wide conference on discrimination issues that was attended by nearly 300 people from a wide section of the community including many who might be affected by discrimination. It revealed clear support for the introduction of discrimination legislation in Jersey.
February - March 2008: Second consultation on draft legislation: The former Minister for Home Affairs consulted on the changes that had been made to the draft legislation as a result of the 2006 consultation. Only 8 responses were received, which were generally of a technical nature relating to the terminology and application of the draft Law.
March 2009: Enforcing the law: During discussions with stakeholders in 2008 about the most appropriate method of enforcing the law, it was proposed that the Employment Tribunal should hear all discrimination complaints, not only those that are employment-related. This was proposed instead of options that would involve a Discrimination Panel and the Petty Debts Court, which could be confusing and potentially inconsistent.
April – July 2010: Scrutiny: The Minister for Home Affairs reviewed the draft Law and prepared a revised draft that included the protected characteristic of race (rather than being provided in separate Regulations). The draft Law was presented to the Education and Home Affairs Scrutiny Panel.
2011: Funding: The Home Affairs Department’s budget for Discrimination Legislation (£100,000) was agreed as a saving under the Comprehensive Spending Review and so the draft Law was not progressed.
July 2011: Ministerial responsibility: The States adopted the Proposition “Discrimination Law and delay on pension reform” (P.118/2011), as amended by the Council of Ministers. Responsibility for the Discrimination Law transferred to the Minister for Social Security with sufficient funding allocated by the Minister for Treasury and Resources for the implementation of discrimination legislation for 2013 and beyond.
May 2012: Law drafting: The Minister for Social Security submitted the first law drafting instruction to the Law Draftsman and law drafting continued during 2012.
September – October 2012: Consultation on the draft Law was undertaken with stakeholders, including representatives of the Tribunal, JACS, CAB, Chamber of Commerce and Institute of Directors. In view of the comments received, the Minister requested further amendments to the draft legislation.
December 2012: The draft Law was presented to the Council of Ministers, Corporate Management Board and the Health, Social Security and Housing Scrutiny Panel.
Appendix 2 – Changes to the draft Law during 2012
The Minister has reviewed the draft Law and consulted with stakeholders during 2012, resulting in a number of changes to the draft Law. The main changes are summarised below.
- Tribunal Secretary instead of Discrimination Officer – this is now a neutral administration role which is undertaken by Officers of the Judicial Greffier who perform the existing function of Secretary to the Employment Tribunal. The Secretary will not personally conciliate, but will refer the parties to mediation or conciliation. In addition, the Secretary cannot dismiss a complaint that appears to be trivial, frivolous or vexatious. As provided in early drafts of the Law, this role could have been viewed as contrary to Article 6 of the European Convention on Human Rights (the right to a fair trial) because it would involve making a determination of a person’s rights without recourse to an independent and impartial tribunal.
- Non-discrimination notices - The power for the Tribunal to serve non-discrimination notices has been removed from the draft Law as it is considered inappropriate and disproportionate (particularly the associated criminal offence) in view of the Minister’s intention to keep the law as simple as possible. The equivalent provision in the UK is the responsibility of an independent commission rather than a tribunal. Similar provisions appear to be rarely used in the UK (around 7 notices in 35 years) and in Guernsey (zero notices in 7 years). It is considered that the best incentive not to discriminate will be the prospect of a discrimination complaint.
- Advertising - Whilst former UK discrimination legislation included provisions relating to discriminatory advertisements, the Equality Act no longer includes these provisions. The best incentive not to place a discriminatory advert is likely to be the prospect of a discrimination complaint and outlawing the placement of discriminatory adverts is unlikely to significantly add to that incentive. A discriminatory advertisement is likely to provide strong proof of a person’s intention to discriminate.
- Remedies - The amount that the Tribunal may award for injury to feelings is capped, within the £10,000 overall cap, so that of the £10,000 maximum award, no more than £5,000 may be awarded by the Tribunal for ‘hurt and distress’. This minimises the impact of a hurt and distress award without limiting any further the amount that can be awarded to a person who has suffered financial losses, which would be limited only by the overall £10,000 cap. Most UK Employment Tribunal awards for injury to feelings are assessed as falling within the lowest award band (up to £5,000).
- Time limit for making a complaint – Rather than providing an 8 week time limit for complaints under the Employment Law and a 12 week time limit for complaints under the draft Law, it makes sense to apply the same time limit (8 weeks) for complaints to the Tribunal under both laws, particularly given that, in employment-related cases, a complaint of unfair dismissal and discrimination will often be made together.
- Codes of practice – Codes of practice may be prepared to provide guidance on any matter relating to the draft Law and the same provision is made as in the Employment Law for the Minister to consult on and formalise codes of practice by Ministerial Order.
- Protected characteristics – As in the Equality Act, the draft Law now uses the term ‘protected characteristic’, rather than ‘attribute’, to refer to the particular characteristics that are protected from discrimination under the draft Law (e.g. race). Schedule 1 will be dedicated to setting out all of the protected characteristics with their definitions, which will provide a neat way of adding further protected characteristics in the future (e.g. sex, age and disability).
- Definition of ‘race’, National origin - Whilst the inclusion of the words ‘national origin’ suggest that something more is intended than just ‘nationality’, the draft Law now provides that “national origins” includes being of Jersey origin. It is not necessary to set out an objective test of what ‘Jersey origin’ means. It will be for the individual complainant in any particular case to establish whether they were discriminated against on the basis that they were, or were perceived to be, of Jersey origin.
- Exceptions, Positive discrimination – The draft Law no longer permits full and overt positive discrimination where the intention is to ensure equal opportunities. The provision as previously drafted was potentially controversial in that it was more sweeping than the UK equivalent and did not depend on a person being able to demonstrate that the measure relied upon meets a genuine need, e.g. that the needs of a particular group can only be met by a restricted or preferential allocation. Nor was there any requirement for the measure to be proportionate or reasonable in all of the circumstances. Guernsey’s law does not include any provision for positive discrimination. The positive discrimination provisions have been removed from the draft Law to keep the law as simple as possible at this stage.
- Exceptions, Genuine occupational qualifications – Like the Equality Act, the draft Law now includes a general exception so that, having considered all the circumstances, a specific occupational requirement is proportionate and reasonable. There is no longer a list of specific circumstances in which certain occupational qualifications are considered genuine (e.g. for authenticity in restaurants or artistic modelling).
- Exceptions, States policy - Where States policies or decisions of a Minister promote employment or access to services and apply criteria that relate to length of residency or place of birth, a person does not discriminate if they act in accordance with that policy or decision. The draft Law previously exempted only acts committed in order to comply with any legislative or judicial authority. Policies that have been created by Ministers and the States, rather than legislation, will continue to be introduced as fiscal stimulus measures provide new initiatives that are timely, targeted and temporary, particularly relating to employment. Given the delay that the requirement for Privy Council assent often brings, policy is often used in Jersey rather than legislation for short-term or temporary initiatives. The Social Security Department’s non-statutory ‘employment grant’ policy, for example, was created to enable and encourage businesses to provide permanent employment for locally qualified people who are long-term unemployed in a competitive job market. An employer who favours a locally qualified job applicant over a non-qualified applicant in order to be eligible for the grant must feel confident that this does not constitute discrimination on grounds of race.
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