Walkers' four-part Equality Awareness series has covered the key issues facing Island employers and HR teams in light of the proposed introduction of the new multi-ground discrimination law.
If enacted, the new law will see Guernsey moving from three protected grounds (sex, marital status and gender reassignment) to 10 - age, carer status, disability, marital status, pregnancy or maternity status, race, religious belief, sex, sexual orientation and trans status. This would be a big step that would have an impact on every Guernsey employer, so Walkers' employment law team was expecting significant interest in the series.
We were delighted with the level of engagement that we had, with audiences growing progressively larger throughout the series, and some insightful discussions and questions from attendees.
Thanks to everyone for attending, and specifically thanks to everyone for their questions and input through the sessions.
The key talking points, in no particular order, are:
- There has been concern raised about the breadth of the definition of "disability" by many employers and how the definition of "disability" will also impact on the definition of "carer". In addition, the proposal that "carer" will include all parents of children under 18 has raised questions around the very wide scope of protection being proposed. These are the areas we can expect to see more commentary on as the consultation responses are analysed and proposals for the legislation developed. In the meantime we would recommend that employers take the opportunity to review their policies and procedures in respect of recruitment, attendance, sickness absence and capability and also consider their approach to flexible working requests.
- Employers are also looking for guidance on the proposed duty to make appropriate adjustments for a disabled employee. This is an area where a Code of Practice will be helpful to give employers further guidance. Employers are likely to need to work closely with Occupational Health teams for advice and should review their contracts and policies to ensure there is provision to refer an employee for a medical assessment if required.
- The proposals in respect of equal pay for work of equal value are complex and currently relate to all 10 proposed protected grounds (unlike the UK where this relates only to sex). It may be that this is one part of the proposed legislation where implementation is delayed giving employers time to prepare. Steps that employers can take now include reviewing their pay structures and pay review processes to identify any pay discrepancies and ensuring these can be justified and, if necessary, addressed going forwards.
- With the likely introduction of age discrimination, employers with contractual retirement ages should review these to consider if this age can be objectively justified. It is unclear at this stage what approach the States may take to age related provisions in employee benefits and pension schemes, although certain exceptions are included in the proposals such as allowing employers to fix an admission age to a scheme or to fix the age from which a benefit can be taken. Reviewing your schemes for any existing age related provisions will help you understand if any changes may need to be made or if an exception might apply.
- Having different legislation in Guernsey and Jersey will, for some pan-Island employers, be a challenge. Educating your employees (particularly your managers and directors who have pan-Island responsibilities) and ensuring your policies are appropriate for both Islands will be key.
- The current limits on compensation awards in discrimination cases – currently fixed at three months' pay - are being reviewed as part of the current discrimination legislation consultation process. A dual-award structure based on financial loss and injury to feelings has been proposed which will almost certainly have a financial impact on employers, even if claims are resolved on an informal basis. Employers who review their internal practices and culture and prepare for the incoming legislation in advance to address any improper behaviour will be putting their organisation in the best place to minimise their risk and exposure to these type of complaints and consequent awards.
- The infrastructure in Guernsey needed to support the proposed legislation will need developing and funding. The possible introduction of an Equality and Rights Organisation (ERO) is being considered. How the ERO works alongside the Employment Relations Service (ERS) and the Employment and Discrimination Tribunal will, in our view, be key to achieving the objectives of the legislation. In addition, employers will need to have access to an adequately resourced and appropriately experienced Occupational Health service in order to receive proper guidance on making appropriate adjustments.
The next development that we expect to see is a report summarising the responses received to the recent consultation which is expected in December. This will be followed by the publication in March 2020 of the Committee for Employment and Social Security's policy letter setting out the proposals for the new law which will then be debated by the States in April 2020.
Please do not hesitate to contact us to discuss any of the points above or those that we have covered in our training series.
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.