Introduction

The Discrimination (Jersey) Law 2013 currently protects individuals in Jersey against discrimination on the grounds of race, age, sex, sexual orientation, gender reassignment, pregnancy and maternity. Effective from September 1 2018, this legislation will be amended by the Discrimination (Disability) (Jersey) Regulations 201- to include disability as a protected characteristic, bringing Jersey more in line with the United Kingdom as a jurisdiction that promotes modern standards of respect for individuals' rights and equality.

The regulations will give individuals the right to complain to the Employment and Discrimination Tribunal when they believe that they have experienced discrimination in a wide range of areas, including:

  • recruitment;
  • employment;
  • education;
  • on premises;
  • in clubs and associations;
  • voluntary work; and
  • the provision of goods and services.

Overview

A person is considered to have a disability (and thus protected under the regulations) if he or she has one or more long-term physical, mental, intellectual or sensory impairment that adversely affects his or her ability to engage or participate in any activity in respect of which discrimination is prohibited under this law.

A long-term impairment is one which has lasted, or is expected to last, at least six months or until the end of the person's life.

There are four types of discrimination claim, which apply only if the discriminator knows or could reasonably be expected to know that the individual has a disability:

  • Direct discrimination – treating an individual less favourably than another person because of his or her disability or where something arises because of their disability (eg, refusing to allow a disabled person to eat in a restaurant because he or she is accompanied by a guide dog, unless the refusal is a proportionate means of achieving a legitimate aim).
  • Indirect discrimination – the application of a provision, criterion or practice that disadvantages people with a particular characteristic (eg, a requirement to have a driving licence where there is no genuine need to drive in the course of employment could discriminate against epileptics, as a significant number of sufferers cannot 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 his or her employer is failing to promote employees with disabilities could claim victimisation if he or 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 (eg, an employee being bullied because of his or her disability could make a harassment claim to the tribunal).

If the tribunal finds, on the balance of probabilities, that an individual has been discriminated against on the grounds of a disability, it can:

  • make a declaration regarding 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 that the respondent take certain actions to reduce the adverse effect of the discrimination on the 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.

What employers should do

There are two actions that employers should consider taking between now and September 1 2018, ahead of the inclusion of disability as a protected characteristic under the discrimination law.

The first is a behavioural change in the way in which they:

  • carry out activities;
  • recruit staff; and
  • manage staff.

It is insufficient for an employer to simply make no changes because it employs 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 regulations. Further, employers should be able to demonstrate that they have considered the regulations' practical implications on their employees' individual roles. If a complaint is made, the fact that training has taken place could be significant when the tribunal considers how to dispose of the 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 employers. However, the duty to make reasonable adjustments to premises is more onerous; therefore, this requirement will apply from September 1 2020 to give employers enough time to plan any necessary changes to make premises accessible for all. These changes may include adaptations to the design or construction of the building and how individuals enter and exit the building, as well as changes to furniture, fixtures or fittings used in or on the premises, except where a contravention arises under the Building Bylaws (Jersey) 2007. It is unclear at this stage what would be considered a proportionate cost for adaptation for a small business employing a restricted number of staff.

When making changes to buildings or workplaces, employers must consider whether consent is required under any of the planning or building bylaws. While the regulations are not expected to result in a significant increase in planning applications, this should always be considered on a case-by-case basis to avoid a breach of the planning laws.

Comment

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 September 1 2018 implementation date.

For further information on this topic please contact Laura Shirreffs at Ogier by telephone (+44 1534 514 000) or email (laura.shirreffs@ogier.com). The Ogier website can be accessed at www.ogier.com.

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