The Jersey Employment and Discrimination Tribunal (the “Tribunal”) has now published its first decision under the Discrimination (Jersey) Law 2013 (the “Discrimination Law”) in relation to employment and sexual orientation. The 2016 case of Flanagan v Island Greetings Ltd & Others involved a range of complaints, including victimisation and harassment, brought by a gay former shop-worker. In addition to findings against the employer, complaints of harassment against two co-workers were held “well-founded”, leading to orders that each of the co-workers personally pay compensation for causing hurt and distress.
On 12 September 2015, the Gay Pride march had passed the shop in which the Applicant and the Second and Third Respondents (both more senior employees) were working. The Second Respondent asked the Applicant, in front of another employee, what the march was for. The Applicant replied “It’s for Gay Pride”. The Second Respondent asked again “Yes, but what’s it for?” The Applicant said again “It’s for Gay Pride.” The Second Respondent said that he did not see “…why anyone would hide their sexuality” - a comment directed towards the Applicant, leading a third member of staff to declare in giving evidence “Wow! That made things awkward.” The Applicant did, indeed, feel awkward (he was gay but not “out” to his working colleagues) but decided to ignore matters and get on with his work. A little later on, the third member of staff involved in the initial exchange heard the Third Respondent make a comment to the effect that “They should burn all the gays.” This bystander complained to the Second Respondent, who dealt with matters extremely insensitively. The Applicant also subsequently reported the incident. The employer (the First Respondent) investigated - to a certain extent - and directed that letters of apology should be sent to the Applicant. Subsequently the employer made the Applicant redundant.
The Applicant brought a claim to the Tribunal alleging discrimination, victimisation, harassment and unfair dismissal. The Applicant’s claims of discrimination and harassment, on the ground of sexual orientation, were brought not only against the employer but also against the Second and Third Respondent employees personally.
The Tribunal found in favour of the Applicant in relation to the claims of unfair dismissal, victimisation and harassment (but not in relation to the allegation of direct discrimination).
The detailed judgment includes the following passage:
“The Tribunal heard evidence from both AB and JB [the two directors of the business] that they had received no training in the Discrimination Law and had not required any of their staff to attend such training. In addition AB or JB, as owners of the business, had failed to put in place any equality or diversity policies or raise awareness of these issues among their staff. The Tribunal would point out that any of these actions would have gone some way to ensuring that they had taken ‘reasonably practicable steps’ to prevent an act of discrimination taking place at work. To make matters worse, evidence was heard that JB was aware of the banter that went on between the employees and to some extent joined in with it in order to be ‘one of the lads’. This indicates to the Tribunal that the daily acts of bullying and harassment which appeared to take place in this working environment were actually condoned by the management of the employer. The Tribunal finds there was clearly no attempt to manage the behaviour of the employees before this incident although, in fairness, AB on becoming aware of the extent of the problem acted swiftly and decisively in preventing these types of comments being made in the workplace again. However until that point the First Respondent was irresponsible in ignoring the impact of the Discrimination Law…”
Under Article 42(1) of the Discrimination Law, the Tribunal can award up to £5,000 for hurt and distress (“injury to feelings”). Article 42(2) enables the Tribunal to apportion an order for payment of compensation in such amounts as it considers just and equitable. Having considered UK case law – which is not binding upon the Jersey Tribunal - it held that, in cases of this type, compensation for injury to feelings will be considered in three bands:
(a) Top band (most serious): £4,000 to £5,000;
(b) Middle band: £1,500 to £4,000; and
(c) Less serious cases: £500 to £1,500.
Aside from the compensation for unfair dismissal and victimisation (both payable by the employer, the First Respondent) the Tribunal awarded the sum of £1,450 by way of compensation for harassment:
“The Tribunal finds this to be a serious example of harassment by the Second and Third Respondents which falls into the top part of the lower band of compensation”.
The Tribunal held that the First Respondent also bore some responsibility given that the action took place during the course of employment as it had taken no steps to avoid such harassment taking place.
It apportioned liability for payment of the harassment compensation between the respondents, with the two co-workers ordered to pay sums of £870.00 and £145.00.
This is the first time that the question of liability of individual employees for discriminatory acts in the course of employment has been addressed by the Tribunal. The judgment is careful and detailed but provides only limited guidance in terms of how the Tribunal assessed and apportioned the harassment compensation.
There has been one previous published decision under the Discrimination Law: the case of Bisson v Condor Limited (20 May 2016). That case concerned discrimination on the ground of gender reassignment in which a “non-intentional and non-malicious act of discrimination” was admitted. Rather than making any order in respect of compensation in the Bisson case, the Tribunal made recommendations pursuant to Article 42(1)(c) of the Discrimination Law in relation to matters such as the updating of Condor’s Equality and Diversity Policy.
Together the cases of Bisson and Flanagan demonstrate how the Tribunal is testing its powers under the Discrimination Law. Following publication of the Flanagan decision there has been criticism that the awards made were “extremely low” by comparison with the UK, where there is no statutory cap on awards under discrimination legislation. However these awards were not negligible, given the likely salaries of the parties. In discrimination cases the Tribunal has to ensure that an award is “just to both parties”. It may have to walk a fine line between supporting individuals whose rights have been infringed and recognising that this legislation requires cultural change which will not happen overnight. It is arguable that draconian measures could be counter-productive, particularly at this early stage in the development of Jersey’s discrimination case law.