The introduction of substantive equality legislation in the Isle of Man has been a long time coming; however with the introduction of the Equality Bill 2015 ("Bill"), designed to "replace the Isle of Man's current limited and patchwork legislation relating to discrimination and equality", at least matters are moving in the right direction. By way of update, for those readers unfamiliar with these developments in Manx employment law, the consultation on the Bill ended in November 2014, with the Isle of Man Council of Ministers (COMIN) this week publishing its response to the same ("Response").
A full copy of the draft Bill and Response can be located here at the Government website, however key areas arising from the consultation can be summarised as follows:
The Bill introduces various 'protected characteristics' upon which discrimination and harassment is unlawful, to include age, disability, gender reassignment, marriage and civil partnership, pregnancy/maternity, race, religion or belief, sex, and sexual orientation. This is as in the UK; however one key difference is in relation to the Isle of Man position with regards to the much debated issue as to discrimination on the grounds of caste. The UK Government has not yet introduced this, however it is envisaged that caste will be explicitly included within the definition of race in the Bill from the outset where COMIN consider such inclusion to be the "right thing to do".
Equal pay for equal value
The Bill has introduced the concept of 'equal pay for equal value', a new and distinct concept to that currently contained within the Manx Employment (Sex Discrimination) Act 2000 whereby it is unlawful for an employer to discriminate between men and women in terms of their pay where a woman is employed in 'like work' or 'work rated equivalent' to that of a man in the same employment (or vice versa). There is however to be a minimum two year "lead in" period after the Bill receives Royal Assent to allow employers an opportunity to review pay structures.
The maximum amount of pay arrears that the Employment Tribunal (or the Employment and Equality Tribunal as it will be known in due course) can award in such cases will be limited to two years, and not six years as applying in the UK.
Further, and unlike in the UK where large employers are required to publish pay information, no such power is contained within the Bill.
The Bill will not contain provision for a "conscience clause" i.e. any provision that relieves a person from compliance on religious grounds. COMIN consider it acceptable that the Bill require equality of treatment, even if such treatment is contrary to a person's religious connection.
The Bill will include an enabling power allowing the Employment and Equality Tribunal to introduce fees in respect of claims filed. This will not however mirror the UK system. COMIN consider any fees chargeable will be moderate "threshold" fees only, designed to deter weak or vexatious claimants.
The preference of the Department of Economic Development is to retain the Isle of Man system with regard to calculations, but to extend entitlement to older employees (in line with the protection from age discrimination) and to impose a cap on statutory redundancy payments of 26 weeks.
Retirement at 65?
The Bill includes protection against age discrimination. The impact for employers lies in the fact that Manx businesses will no longer be able to dictate a compulsory retirement age for staff. The Bill will contain no default retirement age and thus workers and employees will be able to stay in employment longer.
Complaints to the Attorney General ("AG")
Where a person thinks that an employer has acted unlawfully by asking questions about health or disability that are not permitted, the person can complain to the AG who has powers to take enforcement against the employer. A person does not need to have a disability to complain to the AG in this situation.
It is hoped that the Bill will be introduced into the
Legislative Council and complete its passage before the 2016 House
of Keys General Election. While it is not envisaged that the
whole Bill will be brought into operation immediately after Royal
Assent, it is envisaged (by the current administration) that the
Bill will be in operation from late 2017/early 2018.
Island businesses and employers would be well advised to start considering the implications of the Bill on its business sooner rather than later. Failing to prepare is preparing to fail, as they say!
Please do not hesitate to contact Leanne McKeown if you have any questions in respect of the draft Equality Bill 2015 and its likely impact on your organisation.
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.