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Discrimination Legislation FAQs

June, 2021

Answering your questions.

The following frequently asked questions (FAQs) are around how the discrimination legislation has changed since the draft policy proposals in 2019, on which the Committee for Employment and Social Security (ESS) consulted widely, compared to what was agreed by the States in July 2020. The answers to all these FAQs are laid out in the same format providing a journey to what has now been agreed.

If you have questions that are not answered below please email: info@disabilityalliance.org.gg

Information Sheets

We have built a number of information sheets to support the FAQ’s. Topics include:

  1. The basis of the Discrimination Legislation
  2. Phasing of the Discrimination legislation
  3. Definition of Disability
  4. Accessibility
  5. Reasonable Adjustment
  6. States Obligation and timings
  7. Proportionality
  8. Cost of Compliance
Discrimination Information Sheets
  • The basis of the discrimination legislation

  • Phasing

  • The Definition of Disability

  • Accessibility

  • reasonable adjustment

  • States Obligations and timings

  • Proportionality

  • Cost of Compliance

Frequently Asked Questions

Download the discrimination legislation changes following consultation and debate. The table is the same as the FAQ’s but all in one place.

Download the table of changes to the Discrimination Legislation
What is the phasing of the grounds for the discrimination legislation?2021-06-16T23:33:59+00:00

Introduction

It has been agreed that the 10 different grounds which will be covered by the discrimination legislation will be phased in, starting in 2022 and finishing in 2027.

Original Policy Proposals (2019)

Consultation question regarding whether all ten protected grounds should come into force at once or if they should be phased in.

Consultation Feedback (2019-2020)

Mixed response. Some felt the grounds of protection should be phased in, as was the case in Jersey, in order to give businesses more time to adapt and adjust.

Final – What the States have Agreed (2020)

Following a successful amendment, sexual orientation and religious belief were added into phase 1; age remained in phase 2; the remainder of what was previously phase 3 was subsumed into phase 2

Phased implementation in policy letter.

Phase 1: Disability, carers, race, sexual orientation and religious belief.

Phase 2: Age and the replacement and extension to other fields of the current Sex Discrimination Ordinance (sex, gender reassignment, pregnancy and marital status)

What is the definition of “disability” in the discrimination legislation?2021-06-16T20:59:26+00:00

Introduction

disability attracted the most diverse comments.

The final requirement for a disability to be long term is the same as used in the Jersey Discrimination Law The objective of this time limit is to exclude minor illnesses and injuries.

Original Policy Proposals (2019)

– addition of phrase “Disability includes but is not limited to…”; – Removal of the word “chronic” in relation to “the presence in the body of organisms causing, or likely to cause, chronic disease or illness”

Consultation Feedback (2019-2020)

would have the effect that disability was not – defined at all.

A time limit is vital to differentiate between sickness and disability – Use UK/Jersey definition of disability.

Final – What the States have Agreed (2020)

disability with the following changes:

  • To provide additional clarity, “impairment” is defined based on the definition of “disability” in several other countries.
  • Without the unique and untested phrase “which can adversely affect a person’s ability to engage or participate in any activity in respect of which an act of discrimination is prohibited under this Law.” – Exclusions from the Jersey definition of disability are instead covered as a more targeted exception to protect people and property from harm.
  • In addition, clarification is provided that if the existence of a condition, impairment or illness or the prognosis is in doubt, medical, or other expert, evidence may be required
What is the definition of “carer status” in the discrimination legislation?2021-06-16T20:50:13+00:00

Introduction

It has been agreed that “carer status” is linked to the grounds of disability. The care-giver will need to be living with a person with an impairment or be closely related to a person with an impairment.

Original Policy Proposals (2019)

Carer status would include carers of dependent children under the age of 18 and carers of disabled people (subject to meeting a minimum threshold in relation to the provision of care).

Consultation Feedback (2019-2020)

Definition is too broad. Some respondents queried why carers of dependent children were included. Some suggested that the definition should be narrowed by including a requirement for the care-giver to be living with the person with a disability that they provide care for or to be related to that person.

Final – What the States have Agreed (2020)

Scope of definition of “carer status” narrowed.
Proposed definition no longer includes carers of dependent children, unless they have a disability.
Requirements included for the care-giver to be living with the person with a disability that they provide care for or to be closely related to that person.

Is there any protection against third party harassment?2021-06-16T20:54:26+00:00

Introduction

There is no specific protection against third party harassment in the proposals agreed by the States.

Original Policy Proposals (2019)

Irish position on third party harassment included

Consultation Feedback (2019-2020)

The UK has repealed section 40 of the Equality Act 2010 in relation to third party harassment. Jersey does not have a specific provision relating to third party harassment.

Final – What the States have Agreed (2020)

Moved from the Irish to the UK position so there is no specific protection against third party harassment, but employers should still take reasonable steps to prevent harassment.

The absence of a third party harassment provision does not necessarily remove the possibility of someone raising a discrimination complaint or a complaint under another section of the legislation if they feel that an employer or service provider’s handling of a situation included different treatment or harassment on the basis of one of the protected grounds.

Who is liable for the acts or omissions of an employee?2021-06-16T20:55:53+00:00

Introduction

The States have agreed to closely align to the UK legislation in respect of liability.

Original Policy Proposals (2019)

Individual liability not specified

Consultation Feedback (2019-2020)

The draft proposals do not offer sufficient protection for employers and service providers in situations where employees or service users acted in ways which were beyond the employer’s or service provider’s control.

Final – What the States have Agreed (2020)

Now more closely aligned to the UK

In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment. Although it is a defence if the employer can show it has taken all reasonable steps to prevent such acts or omissions from occurring.

What is the financial compensation award structure?2021-06-16T21:31:49+00:00

Introduction

The States agreed that if a complaint of discrimination, harassment or victimisation is upheld, the Tribunal could:

  • order financial compensation be paid to the person who has been discriminated against, harassed or victimised; and/or
  • order a non-financial remedy (this might include, for example, a requirement for someone to undergo training or an order to provide a reasonable adjustment).

The following provides details on the financial compensation that can be awarded by the Tribunal.

Original Policy Proposals (2019)

Introduction of compensatory awards proportionate to the loss someone has experienced and potentially made up of two elements – financial loss and injury to feelings.

Revised awards structure for all employment protection cases so compensatory  award received once.

Consultation Feedback (2019-2020)

No need to change the unfair dismissal regime/award.

Should be light touch and proportionate

Final – What the States have Agreed (2020)

No change to unfair dismissal regime and capped awards.

For discrimination in the field of employment: An upper limit of 6 months’ pay plus up to £10,000 for injury to feelings based on a three banded scale akin to the Vento Scale used in the UK (albeit with a much lower upper limit).

For discrimination in all other fields: An upper limit of £10,000 for financial loss plus up to £10,000 for injury to feelings.

Where a claimant makes complaints for both unfair dismissal under the Employment Protection Law and discrimination in the field of employment under the existing or new discrimination legislation, and the complaints are related (i.e. discriminatory dismissal), the claimant could be awarded either:

– up to 6 months’ pay under the Employment Protection Law if the unfair dismissal complaint is upheld but the discrimination complaint is not, or

– up to 6 months’ pay plus up to £10,000 for injury to feelings if the discrimination complaint is upheld but the unfair dismissal complaint is not, or

– a combined award of up to 9 months’ pay plus up to £10,000 for injury to feelings if both the unfair dismissal and the discrimination complaints are upheld.

What is meant by the term “reasonable adjustment”?2021-06-16T21:48:20+00:00

Introduction

The States agreed that a reasonable adjustment is a necessary and appropriate modification or adjustment, that does not impose a “disproportionate burden”, which a disabled person requires in order to be treated equally.

Just because someone falls within the definition of disability, does not mean that they would be entitled to a reasonable adjustment. Adjustments must be
“appropriate” and “necessary” and not represent a “disproportionate burden”. This ensures that the duty is focussed on the removal of barriers that actually
exist in a way that is sensitive to the needs of employers in terms of proportionality (taking account of available resources). So, if the person’s impairment has no practical effect in the context of the particular employer’s workplace, the employer would not have to make an adjustment as it would not be “necessary”.

The following gives the changes made in the development of the concept of reasonable adjustment locally.

Original Policy Proposals (2019)

Committee proposed the term “appropriate adjustment”

Consultation Feedback (2019-2020)

Request to re-name the duty “reasonable adjustment” and for it to be more similar to the UK due to familiarity.

Final – What the States have Agreed (2020)

Appropriate adjustment” to be re-named “reasonable adjustment”. The duty to provide a reasonable adjustment will only apply where a disabled person would suffer a “substantial disadvantage” (i.e. more than minor or trivial disadvantage) without the adjustment.

For education providers and goods or services providers the reasonable adjustment duty will be to disabled people generally, thereby making it proactive (as well as reactive), as in the UK.

Five year delay from commencement before any changes (removal or alteration) required to physical features.

What is the anticipatory accessibility duty and action plans and who do they apply to?2021-06-16T22:02:47+00:00

Introduction

The States has left it up to the legislative drafters to decide how the anticipatory access duty should be drafted into the legislation but the  policy intent is that
there should be an anticipatory/proactive element for education and goods or services providers (but not for employers and accommodation providers, or clubs and associations if they did not provide education or services). This could, as in the UK, be framed as an anticipatory element to the reasonable adjustment duty.

The individualized, responsive duty to make reasonable adjustments upon request would apply across all fields – including to employers and accommodation providers. A service provider would be able to justify not making an adjustment, such as not making a service accessible either through the defence of disproportionate burden (in the event of a claim of denial of a reasonable adjustment) or through objective justification (in the event of a claim of indirect discrimination).

With respect to the requirement to prepare an accessibility action plan, the States has decided that this requirement should only be compulsory for the public sector and that the duty should apply five years after the legislation comes into force.

The preparation of a plan would be voluntary for the private and third sectors, noting such a plan could be useful as evidence when responding to a complaint.

The States has agreed that no complaints relating to the removal or alteration of a physical feature can be made until five years after the commencement of the Ordinance.

Original Policy Proposals (2019)

Anticipatory accessibility duty – requirement for education providers and goods or services providers to prepare an accessibility action plan within two years of commencement – but with no duty to implement physical alterations to buildings in relation to accessibility until 10 years after commencement (subject to a fine for non- compliance).

Consultation Feedback (2019-2020)

A separate duty is not needed. Instead, either the reasonable adjustment duty could be owed to disabled people in general or a complaint of indirect discrimination could be made.

Final – What the States have Agreed (2020)

Separate anticipatory accessibility duty removed.

For education and goods or services providers the reasonable adjustment duty will be to disabled people generally, as in the UK.

Duty to prepare accessibility action plans for publicly accessible buildings to apply only to the public sector. Five year lead-in period.

What changes to physical features will accommodation providers have to agree to?2021-06-16T22:26:15+00:00

Introduction

Accommodation providers would include people who sell, rent or lease commercial or residential property or land to others (with exceptions, for example property transactions between family members). This includes estate agents, landlords and individuals who rent or sell property. It also includes government services and charities who provide accommodation or accommodation services.

For accommodation providers, how to respond to a request for a reasonable adjustment will depend on whether that adjustment requires an alteration to a physical feature. Where a reasonable adjustment does not require an alteration to a physical feature, accommodation providers should make the adjustment required and pay for it (provided that it is not a disproportionate burden to provide). This might include adjustments in how they communicate with tenants, how they collect rent, etc.

Where a reasonable adjustment does require an alteration to a physical feature, the accommodation provider may not have to fund the alteration but might be under a duty not to unreasonably refuse to allow an alteration at the tenant’s expense.

Original Policy Proposals (2019)

Accommodation providers cannot unreasonably refuse changes to physical features where the tenant pays for the adjustment and has the funds to return the property to its original condition.

Consultation Feedback (2019-2020)

Request to clarify what is to be considered a “physical feature” and opposition from private landlords.

Final – What the States have Agreed (2020)

Provided clarification over what constitutes a physical feature based on the UK Equality Act 2010. Only limited reasonable adjustment improvements (based on UK position) where private residential landlords cannot unreasonably refuse.  

What is to be treated as an alteration of a physical feature can be modified by the Committee by Regulation.
Having considered the UK position, the definition of a physical feature would include:

  • a feature arising from the design or construction of a building;
  • a feature of an approach to, exit from or access to a building;
  • a fixture or fitting.

Physical features do not include:

  • the replacement or provision of a sign or notice;
  • the replacement of a tap or door handle;
  • the replacement, provision or adaptation of a door bell or door entry system;
  • changes to the colour of a wall, door or any other surface.
What does equal pay for work of equal value apply to?2021-06-16T22:30:28+00:00

Introduction

Equal pay for work of equal value relates to the ground of sex only which is now part of Phase 2 of the discrimination legislation.

Original Policy Proposals (2019)

Applied to all protected grounds. Consultation question on whether a lead-in period was required.

Consultation Feedback (2019-2020)

This should only apply to the sex ground, as in the UK. Cross jurisdictional comparators should not be allowed.

Final – What the States have Agreed (2020)

Should apply only to the ground of sex.


Delayed commencement as sex is in phase 2 – estimated implementation five years after commencement of phase 1 (estimated to be 7 years from now).

No cross-jurisdictional comparators

What are the rules for landlords in relation to children?2021-06-16T22:38:04+00:00

Introduction

The grounds of age is not in phase 1 of the discrimination ordinance.

The States agreed not to include all children under carer status grounds and therefore landlords can still specify no children until the grounds of age are considered in more detail in phase 2.

Original Policy Proposals (2019)

Under the protected ground of “carer status”, landlords would not be able to specify “no children” except in limited circumstances.

Consultation Feedback (2019-2020)

Landlords felt they should be able to specify “no children”.

Final – What the States have Agreed (2020)

Carers of non-disabled dependent children have been removed from the definition of carer status so landlords can continue to specify “no children” if they wish but not because of a child’s disability and not because of something arising in consequence of their disability (e.g. having an assistance animal) unless, in the case of something arising in consequence of their disability, it can be objectively justified.

How is advice and enforcement going to be provided?2021-06-16T22:54:04+00:00

Introduction

The States has agreed to build the existing services used to administer employment and discrimination legislation. The service developments needed to implement the legislation go beyond simply expanding capacity. The new legislation will be more complex and will cover service provision as well as employment. Current governance standards fall short of those seen in comparator jurisdictions such as Jersey and the UK.

The States has also agreed to a proactive and preventative approach to change attitudes and raise awareness to reduce instances of unlawful acts and to ensure that disputes can be resolved as quickly and informally as possible.

The Employment and Equal Opportunities Service (EEOS) will be the new body.

Original Policy Proposals (2019)

Additional resource requirements for implementation and ongoing administration were not included in the original proposals (as this work was still to do).

Consultation Feedback (2019-2020)

Cost should be proportionate for a small Island. The current advisory and conciliation function would need to be expanded. The capacity, skills and expertise of the Employment and Discrimination Tribunal would need to be developed

Final – What the States have Agreed (2020)

Recommendation to expand the current Employment Relations Service to become an Employment and Equal Opportunities Service.

Resource requirements for the proposed Employment and Equal Opportunities Service and the Employment and Discrimination Tribunal have been identified.

See Section 7 – EEOS for more details.

What is the definition of employee/ worker?2021-06-16T23:00:18+00:00

Introduction

The States has clarified that it intends that a-typical and casual workers would be protected in the employment field, but some situations of self-employed persons
(where this is more like service provision than an employment relationship) would not be protected.

The States wants the wording of the ordinance to ensure agency workers are also protected.

Original Policy Proposals (2019)

Definition of employee did not cover all employees and workers covered in the UK.

Consultation Feedback (2019-2020)

The range of persons who could make an employment discrimination complaint appeared to be narrower than under the existing Sex Discrimination Ordinance and the UK Equality Act 2010.

Final – What the States have Agreed (2020)

Clarification: The Committee intends to include a wide range of “workers”. A-typical and casual workers would be protected in the employment field, but some situations of self-employed persons (where this is more like service provision than an employment relationship) would not be protected. The Committee proposes that agency workers are also protected.

What is meant by victimisation?2021-06-16T23:05:14+00:00

Introduction

In response to consultation feedback, the States agreed that for an individual to be protected under the law, the complaint or allegation they have made must have been made in good faith. For clarity, the ordinance will provide protection from victimisation when an individual alleges that there has been a breach of the equality legislation, not just when someone makes or proposes to make a formal complaint.

Original Policy Proposals (2019)

No reference to the requirement for a complaint to have been made in good faith.

Consultation Feedback (2019-2020)

There should be a requirement for the complaint to have been made in good faith. Protection should apply from the earliest stage, not just from when a person makes or proposes to make a formal complaint.

Final – What the States have Agreed (2020)

Clarification:
Complaints must be made in good faith.
Protection from victimisation would apply from when an individual alleges that there has been a breach of the equality legislation
, not just when a person makes or proposes to make a complaint.

What is meant by race?2021-06-16T23:11:05+00:00

Introduction

There was a request during the consultation that in defining “race” in the legislation, it is clarified that a racial group could comprise two or more distinct racial groups. The States has included this clarification.

Original Policy Proposals (2019)

“Race” would include colour, descent, nationality, ethnic origins and national origins.

Consultation Feedback (2019-2020)

Request for clarification in respect of racial groups.

Final – What the States have Agreed (2020)

Clarification:
A racial group could comprise two or more distinct racial groups
(e.g. a person may describe themselves as black, African or Nigerian, so the racial group they belong to would comprise of any or all three of these).

What are multiple and intersectional discrimination?2021-06-16T23:21:05+00:00

Introduction

“Multiple discrimination” refers to a situation in which a person experiences discrimination on two or more grounds, leading to discrimination that is compounded or aggravated.

“Intersectional discrimination” refers to a situation where several grounds interact with each other at the same time in such a way as to be inseparable.

Article 6(1) of UN Convention on the Rights of Persons with Disabilities (CRPD) recognizes that women with disabilities are subject to multiple discrimination and requires that States parties take measures to ensure the full and equal enjoyment by women with disabilities of all human rights and fundamental freedoms. The Convention refers to multiple discrimination in Article 5(2), which not only requires States parties to prohibit any kind of discrimination based on disability, but also to protect against discrimination on other grounds.

Original Policy Proposals (2019)

Included in the Committee’s draft proposals

Consultation Feedback (2019-2020)

Not covered in the UK.

Final – What the States have Agreed (2020)

Multiple and intersectional discrimination deferred.

Propose they should be considered as part of phase 2 of the proposals when additional protected grounds are added.

Is there a power to strike out or dismiss complaints or responses?2021-06-16T23:26:51+00:00

Introduction

The Tribunal will have the power to strike out (amongst other things) vexatious complaints and the power to dismiss complaints with no reasonable prospect of success.

Original Policy Proposals (2019)

Power to strike out complaints not included.

Consultation Feedback (2019-2020)

Concerns about management time required to deal with vexatious complaints.

Final – What the States have Agreed (2020)

New powers for the Tribunal. The Committee intends to make an Order giving the Employment and Discrimination Tribunal the power to strike out (amongst other things) vexatious complaints and the power to dismiss complaints with no reasonable prospect of success.

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