There was much celebration accompanying the approval by the States of Guernsey to introduce discrimination legislation, but as anyone who has followed this subject over the last few years will know, there remains much work to be done.
Background to discrimination law in Guernsey
In 2003, a policy letter was approved which identified the need to introduce measures to tackle discrimination, including a comprehensive law. On the back of this, Guernsey enacted its first and to date only piece of anti-discrimination legislation in 2005 covering sex discrimination. Then in 2013, as part of the Disability and Inclusion Strategy, the States resolved to introduce legislation to prevent discrimination against disabled persons and carers, but this went into the long grass, until 2018 when the States again voted to approve a proposal to implement legislation to prevent discrimination, albeit on a much wider basis to also cover race, age and sexual orientation. This led to the States launching an extensive public consultation exercise in July 2019 over its proposals, but unfortunately, the view of many was that the detail of some of the proposals went too far in certain areas and needed further refinement. This caused the States to reflect and when the Committee for Employment & Social Security came back with its revised proposals, it had dropped sexual orientation and religious belief as protected characteristics, and suggested a phased implementation over 3 tranches. When these new proposals were put before the States, amendments were introduced by Deputies that added back in sexual orientation and religious belief as protected characteristics, and reduced the period of implementation from 3 down to 2 main tranches, with first set of protections in place by 2022 and the second by 2024.
What will the new discrimination law cover in Guernsey and how will it differ from the UK and Jersey?
When the first tranche comes into force in Guernsey in 2022, there will be protection against discrimination on the grounds of sex, gender re-assignment, disability, carer status, race, sexual orientation and religious belief. This will then be followed in 2024 with the second tranche, which will include age discrimination and the modernisation of the existing sex discrimination ordinance, introducing a right of equal pay for work of equal value.
To place this in context once Guernsey's law is fully into force, below is a comparison of the protections in Guernsey, Jersey and the UK:
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The other big difference at this stage between Guernsey and Jersey's existing legislation will be the right to equal pay for work of equal value. Whilst this right in theory sounds straightforward, based on experience from the UK the exercise of undertaking comparative analysis between two jobs to assess whether they are of "equal value" and if they are determining whether that difference is on the grounds of sex is a hugely technical and complex exercise. As such whilst the law should be enacted in 2024, this element is not envisaged to come into force until 2027 to allow employers to review their pay structures.
To recognise the added demands that are to be placed on the Employment and Discrimination Tribunal, the States have also approved a further change to require all Chairs to be legally qualified, bringing Guernsey into line with most other jurisdictions. As part of this it is also intended that new rules of procedure, rules in relation to conciliation and time limits will also be introduced.
In addition to the above there would be further deferrals in relation to discrimination in the field of education which would come into force in 2026 and complaints in respect of changes to physical features which will come into force in 2027.
The next stage for the States will now be to go away and draft the legislation to implement these proposals and based on previous experience it is not envisaged this will be a smooth passage. In particular, probably the single most controversial aspect of the previous proposals was the broad definition of the disability which had been included and this will need to be revisited. Equally, another key component of the review will include Guernsey's compensation regime for employees, which presently operates a "fixed tariff" of 6 months' award for a normal unfair dismissal and a further 3 months' pay for acts of discrimination. If Guernsey moves towards more of a compensation-based system, the question will then be what will be the cap on awards?
More detailed proposals are likely to be provided by the States during 2021 which is the "Training Stage" associated with phase 1. Hopefully all sides can work together, adopting the spirit of #Guernseytogether, to introduce some proposals that work for Guernsey, its people and its businesses, because if the events of the last few months' have shown us anything with #blacklivesmatter, it's that it is not acceptable that as things stand today in Guernsey you can still lawfully discriminate against someone on the grounds of race, disability, sexual orientation or any of the other key protected characteristics.
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