The Discrimination (Jersey) Law 2013 currently protects individuals in Jersey against discrimination on the grounds of race, age, sex, sexual orientation, gender re-assignment, pregnancy and maternity. Effective from 1 September 2018, this legislation will be amended by the Discrimination (Disability) (Jersey) Regulations 201- (the Regulations) to also include disability as a protected characteristic, bringing Jersey more in line with the UK as a jurisdiction that promotes modern standards of respect for individuals' rights and equality.
The Regulations will give individuals the right to take a complaint to the Employment and Discrimination Tribunal (the Tribunal) when they believe they have experienced discrimination in a wide range of areas including: recruitment, employment, education, premises, clubs and associations, voluntary work and the provision of goods and services.
A person is considered to have the protected characteristic of disability if they have one or more long term physical, mental, intellectual or sensory impairments 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.
A long term impairment is one which has lasted, or is expected to last, for not less than 6 months or is expected to last until the end of the person's life.
The four types of discrimination claim, which only apply if the discriminator knows or reasonably should have expected to know that the individual has the disability are:
- Direct - treatment of an individual less favourable than another person because of their disabilities or something arising as a consequence of their disability, ie refusing a person with a disability to eat in a restaurant because they are accompanied by a guide dog (unless the refusal was a proportionate means of achieving a legitimate aim);
- Indirect – the application of a provision, criterion or practice, that disadvantages people with a particular characteristic, ie a requirement to have a driving licence where there is no genuine need to drive in the course of the employment could discriminate against epilepsy sufferers as a significant number of sufferers are unable to drive;
- Victimisation – this protects those who raise a complaint of discrimination (or who assist others in doing so) from suffering less favourable treatment as a result. An employee who claims that her employer is failing to promote employees with disabilities would be able to claim victimisation if she was then dismissed as a result;
- Harassment – unwanted conduct which relates to a protected characteristic that violates the dignity of the victim or creates an intimidating or offensive environment. An employee bullied in relation to their disability would be able to make a claim to the Tribunal for harassment.
If the Tribunal finds, on the balance of probabilities, that an individual has been discriminated against on the grounds of a disability then it may:
- make a declaration of the rights of both sides;
- order compensation of up to £10,000 for any financial loss and up to £5,000 for hurt and distress (subject to an overall limit of £10,000); and
- recommend the respondent takes certain action to reduce the adverse effect of the act of disability discrimination on the particular complainant.
There are several exceptions including that a school may select pupils by reference to general or special ability with a view to admitting only pupils of high ability.
There are two actions that employers should consider taking between now and 1 September, ahead of the inclusion of disability as a protected characteristic under the discrimination law.
The first is behavioural change in terms of the way that the business is carried out, the way that it recruits, and the way that it manages staff. It is not enough for an employer simply to make no changes because it does not employ disabled people, or because it deals with a largely or entirely non-disabled client base. Employers should take steps to ensure that their staff are aware of the new law, and that employers can demonstrate that they have considered its practical implications on its employees' individual roles. If a complaint is made, the fact that training has taken place could be significant when a tribunal considers how to dispose of a case.
The second is to consider whether they should or need to make physical changes to their premises. Many reasonable adjustments can be made at little cost and effort to businesses. However the duty to make reasonable adjustments to premises is more onerous and therefore this requirement will apply from 1 September 2020 to give businesses plenty time to plan any necessary changes. These changes are to make the premises accessible for all and would include a feature arising from the design or construction of the building, the approach to and exit from the building, furniture, fixtures or fittings used in or on the premises, save for where a contravention arises from compliance with any provision of the Building Bye-laws (Jersey) 2007. It is not clear at this stage what would be considered a proportionate cost for adaptation for a small business employing a restricted number of staff.
It should be noted that when making changes to your buildings or workplace, you must consider whether consent is required under any of the Planning or Building Bye laws. Whilst it is not expected that the Regulations will result in a significant increase in Planning Applications it should always be considered on a case by case basis to avoid a breach of the Planning laws.
Ogier's expert Local Legal Services team can provide holistic advice on the employment, property and planning elements of making adjustments in advance of the Regulations coming into force.
In conclusion, many employers and groups will be familiar with the way that the regulations work through their preparation for other protected characteristics covered by the Discrimination (Jersey) Law 2013, or through their experience in other jurisdictions. Nevertheless, all businesses and associations should be taking steps to ensure that they are compliant, ahead of the implementation date on 1 September.