2020 is going to be a very busy and important year for the GDA, especially the first few months as Employment and Social Secuirty (ESS) release their policy letters, by 2nd March, on

  • Discrimination legislation 
  • Equality and Rights Organisation (ERO)

Both vitally important to disabled islanders and carers rights and equality of opportunity locally. 
As you will no doubt be aware, it has not been an easy 6 months since the release of the draft policy proposals of the discrimination legislation. Today ESS published a summary of their findings from that consultation. It is a difficult read but it is an important document as it sums up the voices for and against the proposals for legislation and an ERO (a heads up that there are many areas of lack of support and misunderstandings on its purpose and the benefit to so many islanders, its a tough read) It is also a long read over 200 pages but I have added the Executive Summary below for your benefit. 
Stages of the proposals:

  • The consultation was released in 2019 and the summary findings attached 
  • The ESS team are working hard to produce the policy letters by 2nd March which will be used for …
  • The States Debate 22nd -24th April
  • It is critically important this takes place before the next election in June 2020 (or the delays since November 2013 will be extended further). 

We will hold a members meeting with ESS present, to answer your questions in mid March at Les Cotils, date to be confirmed soon. 
If you have any queries please do not hesitate to contact the social policy team on socialpolicy@gda.org.gg

The content of this report
Due to the volume and technicality of some of the responses, this report aims to give an overview of feedback and includes anonymised quotes to illustrate the range and nature of responses received. To be clear, the Committee has reviewed all of the responses it has received, including responses not quoted in this document. The views quoted in this document are the views of respondents and not the views of the Committee.

What next?
The Committee is now giving further consideration to the various policy issues raised in the feedback received, which may result in substantial changes to the policy proposals. Due to the quantity of feedback and in order to manage workload the President of the Committee announced in November 2019 that the proposals would be refocused on fewer grounds of protection with disability and carer status as a priority.

Executive summary

The Committee for Employment & Social Security (‘the Committee’) received over a thousand responses to its consultation on draft proposals for multi-ground discrimination legislation (available at: www.gov.gg/discriminationconsultation) and would like to thank all those who participated for the time and effort invested in responding.

The Committee asked focused questions on a number of aspects of its proposals but also invited respondents with an interest to comment on any aspect of the proposals that they wished to. 

Feedback on wider aspects of the proposals
Many respondents did not comment on the general principle of whether we should have discrimination legislation. However, where respondents did comment, opinions were divided. Some strongly advocated for the need for discrimination legislation and an Equality and Rights Organisation (ERO) to be introduced as soon as possible. Others strongly opposed arguing that there was a lack of evidence that discrimination happened in Guernsey. A third position was to argue against the Committee’s proposals in particular rather than the principle in general, with some feeling the proposals went too far and were not similar enough to what was in place in Jersey and the UK. Those holding this position argued that this could increase the cost of compliance for businesses and make Guernsey less competitive as a jurisdiction. The need for an ERO was also questioned, with suggestions that the Employment Relations Service should be expanded as an alternative. As the decision to develop proposals for disability discrimination legislation and an ERO were already agreed by the States of Guernsey in November 2013, the comments from some of those opposing the general principles challenge the foundations on which the Committee based their work. 

A range of other issues were raised about the proposals including discussion about the scope of the grounds of protection (particularly around carer status and whether religion should extend to philosophical belief); the need for consideration of retirement and succession planning in relation to age discrimination; queries over the resourcing of the ERO and Tribunal; concerns about mechanisms for handling vexatious complaints; the role of legal aid in discrimination claims; the need for legally qualified chairs in the Employment and Discrimination Tribunal; queries over whether proposed equal pay provisions extended too far; divided opinion on some points such as harassment and accessibility provisions with regard to whether the proposals went too far or not far enough; suggestions that employers should be required to monitor equality; and suggestions to broaden the definition of employment to include more casual workers.

Overview of responses to the Committee’s questions

It is important to note that the questionnaire was not intended to be a representative survey or opinion poll. The consultation was intended to help the Committee to understand what people think and why so that this, along with other considerations, could be taken into account in finalising the Committee’s policy proposals for debate by the States.

Focusing on the specific questions that the Committee asked:

  •   Definition of disability – the Committee received a range of comments on its draft definition of disability with some welcoming a broad definition and highlighting the importance of the Tribunal focusing more on whether or not the conduct a person experienced was discriminatory than whether the person was disabled enough to be protected by the law. On the other hand, significant concerns were raised about the implications for employers of such a broad definition – particularly if it were not possible to distinguish between sickness and disability.
  •   Sex and gender grounds – strong and opposing views were expressed in relation to the Committee’s questions about how to define the sex ground. The most popular response was that it should be based on the gender a person identifies as. Regarding access to single sex spaces, there was roughly equal support for access being based on the gender a person identifies as, unless it could be objectively justified to treat them otherwise and access being based on the gender a person identifies as in all cases. 
  •   Age – slightly more respondents agreed than disagreed with the Committee’s proposal to prevent children and young people from bringing discrimination claims on the basis of their age in relation to nursery and school provision, or from making age discrimination complaints in relation to employment when they were younger than school leaving age. Slightly more respondents disagreed than agreed with the Committee’s proposal to prevent under 18s from making discrimination complaints on the basis of their age in relation to accommodation provision, clubs and societies and goods and services provision.
  •   Families in rental properties – on the whole, more respondents agreed than disagreed with the Committee’s specification of a limited range of circumstances in which accommodation providers could refuse to accommodate children. However, the majority of accommodation providers felt that they should always have discretion to refuse to accommodate children. 
  •   The Equality and Rights Organisation – when considering a list of potential functions for an ERO, respondents prioritised: promoting equality and human rights, providing advice and information to individuals, employers and service providers and helping to resolve disputes informally. When asked where they would go to seek advice (both if they personally had experienced discrimination and if they were seeking advice as an employer or service provider) ‘an independent ERO’ was the most popular response.
  •   Compensation limits – A compensation system containing two elements was suggested – firstly, actual financial loss (for example, lost wages) and secondly, injury to feelings (which looks at the personal impact of the experience on the individual, whether the conduct complained of continued over a long period of time, etc.). The Committee asked if there should be an upper limit to the amount of compensation a person could receive. [Note that in most cases compensation would be proportionate to the case and would not reach an upper award limit]. The most popular option in relation to financial loss was that there should be no upper limit on how much compensation a person could receive. However, more respondents felt that there should be a limit than not in relation to injury to feelings.
  •   Whether the introduction of the legislation should be phased – there was a fairly even split on whether the legislation should be phased in or not. More respondents thought that equal pay provisions should be brought in immediately than thought there should be a lead-in period. The opposite was true for the proposed anticipatory accessibility duty with more respondents thinking a lead-in period was required for employers and service providers to prepare. In relation to appropriate adjustments that would require a physical alteration to a building, more respondents thought there should be a lead-in than those who did not. However, it was argued that the right to reasonable accommodation in the UN Convention on the Rights of Persons with Disabilities should be immediately effective and not delayed. 
  •   Exceptions – a wide range of varied comments were made on the exceptions with areas of particular interest including exceptions related to occupational benefits and pensions, exceptions relating to sex and trans status, and exceptions related to religious organisations. 

The Committee intends to bring a policy letter to the States before the end of the current political term later this year. 
We look forward to seeing you mid march for our next members meeting but would welcome any calls to clarify the current situation or consider how your voice as members may be able to influence anyone voting on this critical topic 22nd-24th April 2020.