Jersey plays catch up over discrimination
In this day and age, it’s difficult to understand how any modern jurisdiction could be behind the curve in its discrimination legislation. It may come as a surprise to many outside the island, then, that the first element of Discrimination Law only came into force in Jersey on 1 September 2014, with more to come later this year. Even more remarkable is that in Guernsey, such legislation still remains nothing more than a concept.
While changes in Discrimination Law in Jersey were well trailed by government, it’s likely that no one in business was prepared for the speed by which each element was to be introduced. The experience for all business, and in particular small and medium sized businesses, is of an unprecedented process of bringing Jersey closer in line with UK legislation. At times this feels rushed and certainly is presenting the island’s businesses with a severe challenge when their focus has been on growing their way out of the recent economic mire.
When the first element came into force last year, it covered racial discrimination (gender and sexual orientation are coming later in 2015). So, the first question then is were you ready or have you continued using advertisements for staff containing sentences such as ‘preference will be given to locals’. Innocently used but now in breach.
Let’s break this down. Discrimination is defined in two forms: direct discrimination is when a person discriminates on racial grounds, (or some other protected characteristic), and they treat that other person less favourably than they treat or would treat other people. There is no justification defence to direct discrimination, which makes it simple to grasp and generally ensures compliance.
Indirect discrimination can be more problematic. This is where a practise or criteria adversely affects a person of a particular group, by placing an ostensibly race-neutral barrier in the way of progress. This would affect a particular class of person and which the plaintiff in particular can’t overcome, even when all employees are treated the same.
For example, in 2013 British Airways employee Nadia Eweida took a landmark case against her employer. The airline put in place a relatively soft ruling that no jewellery was to be worn. Apparently a neutral criteria. However, it adversely affected a small group of employees, more particularly Nadia Eweida, who wished to wear her religious cross necklace. She was able to claim race discrimination as she was being prevented from adhering to the practise of no jewellery based on her religious beliefs.
Discrimination Law affects businesses in ways they probably never thought about and affects employers who never even considered they were being racist. Tribunals now tell employers they should have an HR member of staff to accommodate this ever-increasing red tape but businesses are questioning how practical that is given that an appropriate employee can cost around £80,000 per annum.
That red tape, to deal with new and forthcoming laws, is increasing year on year. For example in September of this year, the next tranche of legislation will be introduced to cover sex discrimination, sexual orientation and gender reassignment.
Sexual orientation covers men’s and women’s sexual attraction to persons of the opposite sex or gender, the same sex or gender, or to both sexes or more than one gender. Generally considered to be heterosexuality, homosexuality and bisexuality. Asexuality, the lack of sexual attraction to others, is sometimes identified as the fourth category. Gender reassignment covers those whose gender identity (how they perceive themselves in terms of male or female) doesn’t come from the sex that they were born with. This is commonly termed as ‘transpersons’, ‘transgender’ or ‘transsexuals’.
The background to this dash for legislation is the sex discrimination law introduced in the UK in 1975, gender reassignment that came in 1999, and sexual orientation legislation that came in 2003. This speed reveals a certain level of desperation to get this done rather than the gradual introduction that businesses would find more manageable to absorb.
With all legislation there are positive and negative elements. What is unique about Discrimination Law in Jersey is that the speed of introduction may prove to be the sole cause of business fear and realised threat. Sadly, the old adage remains: ignorance is no defence in law, however flawed the process of bringing in the new legislation.
Lindsay Edwards-Thatcher is a Solicitor at TM Legal Services in Jersey.