In this article, Colette Hunt considers its
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
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
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
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
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.
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