In this article, Colette Hunt considers its implications
Jersey's draft anti-discrimination law for race allows the Tribunal to make a maximum award of £10,000 if the complaint is upheld or proven; this is for financial loss. Included in this, it allows the Tribunal to make a maximum award of £5,000 for hurt and distress.
It is proposed that the figure (whether £10,000 or any other figure subsequently decided) will apply in all types of discrimination case that are introduced in Jersey - age, disability, sex and sexual orientation.
Those who feel wronged or discriminated against will no doubt feel the proposed maximum figures of £10,000 and £5,000 are far too low for what they have gone through, but many may also say that those who bring such claims are often equally concerned about the principle of feeling justice having been obtained.
When compared with the amounts awarded for discrimination claims in Tribunals in England, Wales and Scotland, where the quantification of such claims is on a different basis, the proposed maximum of £10,000 in Jersey appears to be low.
Annual statistics published by the HM Courts and Tribunals Service show that the highest award for racial discrimination in England, Scotland and Wales for 2011/2012, was £4,445,023 and in 2010/2011, it was £62,530.
Sometimes a racial discrimination claim may have an element of religious discrimination associated with it. As the awards for religious discrimination are listed separately in the annual statistics mentioned above, it is interesting to note that the highest award for this type of case in 2011/2012 was £59,522 and in 2010/2011, was £20,221, again, both figures being quite a lot higher than the proposed ceiling in Jersey.
Even when it becomes unlawful to discriminate in Jersey, it seems that a person who is discriminated against here is potentially going to be far less compensated than if they experienced the same treatment in the UK. If the intention of the law is to bring Jersey into line with other jurisdictions, then the amount of the proposed maximum of the award does not appear to be consistent.
For a society where both the average wage and the minimum wage are higher than the UK, some may consider that an award of £10,000 is too low.
The reality is, that in most cases, less than the maximum award will be made.
The effect of a low maximum is that there will undoubtedly be many complainants who will not be able to afford to be legally represented when bringing a claim because the legal costs will far outweigh the award.
Even if a complainant has some form of third party funding, such as the benefit of legal expenses insurance or trade union membership, these funders may not be willing to allow more than a certain amount of legal fees to be incurred when they are informed that a maximum award that can be made is £10,000 and there is no basis of recovering their costs.
In practice, the effect of a low maximum award may be that the funding is pulled before a case concludes and the complainant is left with the dilemma of having to represent themselves during the contested Tribunal hearing, something they could find very stressful.
However, as already mentioned, often for the complainant in these cases, bringing the claim is about far more than just the amount of compensation they may receive As the Tribunal in Jersey will also have the power to:
- Make a declaration setting out the rights of the complainant and the employer, and
- Recommend that an employer take certain action within a specified period in order to reduce the adverse effect of the discriminatory act on the complainant,
these additional factors should not be overlooked; thus third party funders may feel more obliged to continue to provide funding until the contested hearing, or at least until the amount of any insurance indemnity has been utilised.
From a Jersey employer's point of view, there are other costs that need to be considered other than just the amount of the award itself if they are unsuccessful in defending the complaint, in particular the cost in terms of time and manpower resources of internally investigating the complaint, as well as the potential for bad publicity and poor morale amongst other employees during the process. The best advice is to address any issues sooner rather than later and avoid long or short term damage to your business.
However, one benefit of there being a long lead up to the introduction to the law coming into force next year, is that it may act as a deterrent from now on and ensure that any unlawful practices in the workplace are promptly and adequately dealt with.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.