On Friday 30 September, the States of Guernsey voted to approve The Prevention of Discrimination (Guernsey) Ordinance, 2022 (the Ordinance), subject to a number of amendments. The Ordinance will come into force on 1 October 2023, and will introduce five new protected grounds – disability, carer status, sexual orientation, religion or belief and race, although some of the obligations on employers, service providers and others will not apply until a later date. In particular, any duty to make physical changes to premises will not come into effect until at least 1 October 2028. In addition, employers should be aware that the existing protected grounds under the Sex Discrimination (Employment) (Guernsey) Ordinance, 2005 (the SDO) - sex, marital status, gender reassignment and maternity and adoption leave - will remain in place. The plan is to incorporate these protected grounds into the Ordinance at a later date, as part of phase 2. In the meantime, there will be some changes to awards and remedies under the SDO so that they align with those under the Ordinance.
In all, 17 amendments were tabled for consideration by the States of Guernsey last week, and ten were approved. We have summarised below the main changes which were approved.
- The Ordinance covers five new protected grounds, one of which was originally labelled “religious belief”. The States of Guernsey have voted to change this protected ground to “religion or belief”, which means that certain secular beliefs will also be protected. The definition of belief under the Ordinance is “any religious or philosophical belief”. This is identical to the wording set out in the equivalent provision of the Equality Act 2010 which applies in Great Britain, and so British case law on what is, and is not, a philosophical belief, is likely to be very persuasive in determining cases brought under the Ordinance. The seminal case on this point in Great Britain is Grainger plc and others v Nicholson , in which the Employment Appeal Tribunal said that in order to be protected:
- The belief must be genuinely held.
- It must be a belief, not an opinion or viewpoint based on the present state of information available.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance.
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
- Examples of beliefs that British employment tribunals have been prepared to protect include ethical veganism, anti-fox hunting and gender critical beliefs.
- The definition of “contract of employment” has been amended, so that it only includes contracts of service or apprenticeship, and not other contracts to personally carry out work. This means that self-employed people will not be protected under the Ordinance, unless they fall within another category of protected individuals, such as members of a partnership, or office holders such as directors.
- An additional exception has been added to the Ordinance relating to “freedom of expression”. This states that an expression of an opinion, political view, religious belief or any implied or actual view or position on any subject does not, by and of itself, constitute an act of discrimination prohibited by the Ordinance. A person cannot rely on this exception in relation to any claim for victimisation, and in relation to claims for harassment the exception only applies if (a) the individual expressing an opinion did not intend to violate the dignity of anyone else, or create an intimidating, hostile or degrading, humiliating or offensive environment for them, and (b) it would not have appeared to a reasonable person that their conduct would have that effect. To take an example, if a person were to express a view that a woman should have the right to choose whether to proceed with a pregnancy or whether to opt for abortion, a person who is offended by this viewpoint – whether for religious or other reasons – cannot claim that it amounts to harassment, assuming that the person expressing the view did not make the statement to deliberately offend or upset, and provided that a reasonable person would not have expected the statement to have that effect. This exception may in some cases prove helpful to employers, although there is of course scope for disagreement as to whether a reasonable person would have expected a particular viewpoint to upset or offend others. It is also worth noting that this exception is limited to the expression of views, and not any actions taken in consequence of those views.
- The Ordinance sets out maximum amounts of compensation that can be awarded in situations where a complainant succeeds in more than one claim relating to the same facts and circumstances. In the employment context, this cap is up to 9 months' pay plus up to £10,000 for injury to feelings, hurt or distress. The Ordinance provides that any complaints of victimisation are excluded from this cap, and could attract a further award (in this employment context, this would be a further award of up to 6 months' pay, plus up to £10,000 for injury to feelings, hurt or distress). The States of Guernsey have amended the wording of the Ordinance to make it clear that this additional award remains the same, irrespective of how many successful victimisation claims a person brings related to the same facts and circumstances. A person will not be awarded up to an additional 6 months' pay plus up to £10,000 for injury to feelings hurt or distress for each successful victimisation complaints.
- There were also some other, more minor amendments, including an amendment which will require any Code of Practice issued under the law to be approved by the States, and some tweaks to the exceptions relating to immigration and population management to make it clear that those exercising functions under immigration and population management laws and policy will not face claims under the Ordinance by exercising those functions. An additional sentence has also been added into the section of the Ordinance relating to professional bodies, which confirms that a professional body does not discriminate by imposing requirements to possess relevant skills, experience or professional integrity, or by requiring the passing of examinations.
The States of Guernsey voted against all of the other significant proposed amendments, including a proposal to exempt employers with five or fewer employees from the duty to make reasonable adjustments for people with disabilities, and the duty not to discriminate against those with carer status. They also voted against proposed amendments to lower the compensation limits.
As the Ordinance will come into effect in a little under a year, employers and service providers now have the opportunity to prepare and to ensure that they are following best practice in advance of the legislation being implemented. We would recommend that all employers review their employment contracts and also their policies and procedures to ensure that any changes that are required under the new legislation are incorporated in advance of its implementation. Where employers are operating in both Guernsey and Jersey they will need to consider whether they can and want to harmonise their contracts and policies across both Islands, or whether, due to the differences (such as religion and belief, or carer status), it is preferable to have different policies for each Island.
In addition, employers should consider whether any training may be required internally for their employees, for example around equal opportunities and anti-harassment. In addition, it is always prudent to ensure that your managers/senior leaders, who are going to be responsible for running internal processes in respect of performance (to include pay review processes), sickness absence, grievances and disciplinaries are upskilled and understand the requirements of the Ordinance to help mitigate your legal risk. Please do not hesitate to reach out to your normal Walkers contact if you would like to discuss the Ordinance and what it means for your business and employees.
Walkers is a lead partner in the Consortium, an organisation appointed by the States of Guernsey to provide free training to employers, service providers and other islanders in preparation for the new Ordinance. There are five separate training courses which will run between October 2022 and March 2023 at various times and will be held at the Princess Royal Centre for the Performing Arts, with online options also available. You can sign up to attend the training sessions at www.consortium.gg.
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.