On Friday 30 September, the States of Guernsey voted to approve the Prevention of Discrimination (Guernsey) Order 2022 (the Arrangement), subject to several modifications. The order will come into force on October 1, 2023 and will introduce five new protected grounds – disability, carer status, sexual orientation, religion or belief and race, although some of the obligations imposed on employers, providers services and the like will not apply until a later date. In particular, any requirement to make physical changes to premises will not come into force until at least 1 October 2028. In addition, employers should be aware that existing protected grounds under the sex discrimination (employment) (Guernsey) (the SDGs) – gender, marital status, gender reassignment and maternity and adoption leave – will remain in place. The plan is to incorporate these protected grounds into the Order 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.
A total of 17 amendments were tabled for consideration by the States of Guernsey last week, and ten were approved. We have summarized the main changes that have been approved below.
- The order covers five new protected grounds, one of which was originally called “religious belief”. The States of Guernsey 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 Britain, and therefore UK case law on what is, and is not, a philosophical belief, is likely to be very persuasive in determining cases brought under the Order. The leading case on this point in Britain is Grainger plc and others v Nicholson in which the Employment Appeal Tribunal declared that, in order to be protected:
– The belief must be sincere.
– It should be a belief, not an opinion or point of view based on the current state of available information.
– It must be a belief about some important and substantial aspect of human life and behavior.
– It must reach a certain level of strength, 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 UK employment tribunals have been prepared to protect include ethical veganism, fox hunting and gender beliefs.
- The definition of “contract of employment” has been changed so that it only includes contracts for service or apprenticeship, and not other contracts for the personal performance of work. This means that self-employed persons will not be protected under the Ordinance unless they fall within another category of protected persons, such as members of a partnership or office holders. such as administrators.
- An additional exception has been added to the “Freedom of Speech” Ordinance. This states that the expression of an opinion, political opinion, religious belief or any implied or actual opinion or position on any subject does not, in and of itself, constitute an act of discrimination prohibited by the arrangement. A person cannot rely on this exception in connection with a claim of victimization, and with respect to claims of harassment, the exception only applies if (a) the individual expressing an opinion does not did not intend to harm the dignity of others or to 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 the view that a woman should have the right to choose whether to have a pregnancy or to opt for an abortion, a person who is offended by this view – whether whether for religious or other reasons – may not claim that it is harassment, assuming that the person expressing the opinion did not make the statement deliberately offensive or vexatious, and provided that a reasonable person did not expect the statement to have that effect. This exception may in some cases prove useful to employers, although there is of course scope for disagreement as to whether a reasonable person would have expected a particular point of view to disturb or offend others. It should also be noted that this exception is limited to the expression of opinions, and not to any action taken as a result of those opinions.
- The Ordinance sets the maximum amounts of compensation that can be awarded in situations where a plaintiff wins more than one action involving the same facts and circumstances. In the context of employment, this cap can be up to 9 months salary plus up to £10,000 for injury, injury or distress. The order provides that any claim of victimization is excluded from this cap and could result in further compensation (in this employment context, this would be additional compensation of up to 6 months salary, plus up to to £10,000 for injury to feelings, injury or distress). The States of Guernsey has amended the wording of the Order to clarify that this additional compensation remains the same regardless of the number of successful victimization claims a person brings regarding the same facts and circumstances. A person will not receive up to 6 months extra pay plus up to £10,000 for injury, injury or distress for each successful victimization claim.
- There were also other, more minor amendments, including an amendment that will require any code of practice issued under the act to be approved by the states, and some tweaks to the immigration and migration management exceptions. population to clarify that those who perform functions under immigration and population management laws and policies will not be subject to claims under the Ordinance while performing these functions. An additional sentence has also been added to 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 other significant proposed amendments, including a proposal to exempt employers of five or fewer employees from the requirement to make reasonable accommodations for disabled persons and from the requirement not to discriminate against people with caregiver status. They also voted against proposed amendments to lower compensation caps.
As the ordinance will come into effect in just under a year, employers and service providers now have the opportunity to prepare and ensure they are following best practices ahead of the implementation of the legislation. We recommend that all employers review their employment contracts as well as their policies and procedures to ensure that any changes required under the new legislation are incorporated prior to its implementation. Where employers operate in both Guernsey and Jersey, they will need to consider whether they can and want to harmonize their contracts and policies across the two islands, or whether, due to differences (such as religion and belief, or caregiver status), it is best to have different policies for each island.
In addition, employers should consider whether training may be required internally for their employees, for example on equal opportunity and anti-harassment. In addition, it is always prudent to ensure that your senior managers/leaders, who will be responsible for managing internal processes relating to performance (including salary review processes), sickness absence, grievances and disciplinary measures, are qualified and understand the requirements. of the Order to help you mitigate your legal risk.