At last, the draft of the primary enabling Discrimination Law in Jersey is available to be considered.
The main definitions are set out below followed by a few key considerations for employers.
A person directly discriminates against another by treating that person less favourably than another person because of a particular characteristic.
This is likely to be fairly easy to identify. An example is not employing someone because they are of a particular descent eg. Polish. However, it may not be so easy to prove.
Indirect discrimination is more complex. A person indirectly discriminates against another where they apply a provision, criterion or practice, which the person cannot show to be a proportionate means of achieving a legitimate aim, that disadvantages, or potentially disadvantages, people with a particular characteristic.
An example is if an employer advertised a job which required fluent English to be spoken. Unless it can be shown that the requirement to speak fluent English is proportionate in the circumstances then there is scope for a potential claim. However, if the employer can show that it was necessary to meet a business need, such as to be able to communicate effectively with predominantly English speaking customers, then there would be justification.
What is important to note is that avoiding any form of discrimination should not prevent any employer from offering a job to the best qualified or the most suitable candidate.
The Law intends to protect those who raise a complaint of discrimination (or assist others in doing so) from suffering less favourable treatment as a result.
This involves unwanted conduct which relates to a protected characteristic. A wide variety of conduct can amount to harassment but the test is if the dignity of the victim is violated or an intimidating or offensive environment is created.
Race includes one's colour, nationality, ethnic origin and national origin.
In terms of Race as a characteristic, as everyone falls into one or more racial groups, the Law will protect everyone.
This is about a person's citizenship of an exiting, or recognised, state through either birth or naturalisation.
This is different from nationality. There must be identifiable elements, both historic and geographic which indicate, or indicated, the existence of a nation. For example, English and Scottish people have separate national origins.
National origin includes being of Jersey origin. As there is no objective test for what "Jersey origin" means, it will be for a complainant to establish that he or she was discriminated against on the basis they were, or were perceived to be, of Jersey origin.
A group is distinguished from the surrounding community by certain characteristics including a long shared history and a cultural tradition of its own. Sometimes an ethnic group also has a common geographical origin, language, literature, social customs or religion.
Discriminatory acts are specifically prohibited in a number of areas of which the following are particularly relevant to employers:-
- Paid work including recruitment, terms and conditions offered for employment and termination of employment;
- Contract workers;
- Professional or trade organisations;
- Employment agencies;
- Professional bodies;
- Voluntary work.
However certain acts will not be regarded as discriminatory. For example, if an act is performed or undertaken pursuant to legislative or judicial authority. For example, recruiting someone of a specified nationality to play in national sports team will not amount to race discrimination.
The existing Employment Tribunal will become the Employment and Discrimination Tribunal.
In line with the time limit for unfair dismissal claims, a complaint of discrimination must be lodged with the Tribunal within 8 weeks of the act occurring, or where the discrimination is alleged to occurred on more than one occasion, within 8 weeks of the last of these.
Assuming both parties agree, all employment complaints will first be referred for a conciliation or mediation at JACS.
The Tribunal will only hear cases which do not settle at conciliation or mediation or if the parties do not agree to first try to resolve their dispute in these ways.
The test for the complainant is the same as in civil cases, to prove, on the balance of probabilities, that she or she has been discriminated against.
If the complaint is upheld in the complainant's favour, the Tribunal can:
- Make an order declaring the rights of the complainant and the employer; and/or
- Order compensation of up to £10,000* (for financial loss and hurt and distress); and/or
- Recommend that the employer take certain action within a specified period of time in order to reduce the adverse effect of the discriminatory act on the complainant.
*The proposed limit of £10,000 may be increased or different levels of compensation for financial loss and/or for hurt and distress may be introduced subsequent by Regulations.
After being debated in the States later in the year and then sent to the Privy Council for approval, it is anticipated that the Race Discrimination Law may be in force in the latter part of 2014.
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.