Changes to discrimination protection in Guernsey

Guernsey has had protections against sex discrimination in employment since 2016, but the introduction of further protected grounds has been a long running political debate.

On 1 October 2023, new legislation for the prevention of discrimination came into force. This heralds a major change in the protection against discrimination in Guernsey. In addition, the legislation has made procedural changes for complaints to the Employment & Discrimination Tribunal (the Tribunal).

Which new grounds are protected?

The protected grounds in respect of discrimination have been extended to include:

• Disability – where a person has one or more impairments that has lasted or is expected to last for at least six months or is expected to last until the end of the person’s life;
• Race – skin colour, nationality, ethnic origins, national origins and descent;
• Carer Status – a person has carer status if they provide care or support on a continuing, regular or frequent basis for a person with a disability, where the disability is of a nature that requires that kind of care or support on a continuing, regular or frequent basis and they live with or are a close relative of the person cared for;
• Sexual Orientation – a person’s sexual orientation towards persons of the same sex, persons of a different sex or persons of both the same sex and persons of a different sex; and
• Religion or Belief – any religion, religious or philosophical belief or lack of religion or belief.

Perhaps somewhat surprisingly, age is not yet a protected ground, but there is intention to review that position in future.

What does discrimination mean?

Discrimination can mean:

• Direct discrimination – where a person treats another person less favourably than they treat or would treat others because of a protected ground;
• Indirect discrimination – where a person applies a provision, criterion or practice that has a discriminatory effect on another person in relation to a protected ground. For example, when training courses are offered to all employees but are only accessible after 3:30pm. This could indirectly discriminate against female employees, who are statistically more likely to work part-time and may be unable to access these training courses to further their development outside their working hours;
• Discrimination by association – where a person treats another person less favourably because of their association with another person with a protected ground;
• Discrimination arising from disability – where a person treats a disabled person unfavourably (in a way which cannot be objectively justified) because of something arising in consequence of their disability;
• Victimisation – where a person subjects another to a detriment because they have made a complaint related to discrimination, brought proceedings, or have supported another person’s complaint; and
• Harassment – where a person engages in unwanted conduct (sexual or otherwise), which may or may not be in relation to a protected ground, with the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. This includes where a person is treated less favourably because they rejected or submitted to that conduct.

Making reasonable adjustments

The new legislation introduces a duty on employers to make “reasonable adjustments” to remove or minimise difficulties that a disabled employee or job applicant may face in the workplace, where it is reasonable to do so.  This may include changing physical features in the workplace, taking steps to avoid any disadvantage from a particular practice or providing auxiliary aids.

Conduct at work

An employer must not discriminate against a job applicant or an employee in relation to work, regardless of their length of service. This prohibition includes

• recruitment;
• terms of employment;
• access to opportunities for promotion;
• dismissal; and
• redundancy

An employer must also not victimise or harass an employee or an applicant who has applied for employment or work experience and should not request or require information about a protected ground from an employee or applicant in a discriminatory manner.

The protections do not just affect employers and there are also provisions relating to employment agencies, vocational training providers partnerships, personal and public office holders and professional bodies and professional and trade organisations.

Equal pay and equal treatment

Legal protection is now also given for equal pay and equal treatment in the workplace.

• Equal pay – employees with a particular protected ground should be paid equally to those who are employed to do equal work but do not have that protected ground; and
• Equal treatment – employees with a particular protected ground should be treated equally to employees who carry out work that is not materially different but do not have that protected ground.

Any terms of employment that do not include an equal pay or equal treatment clause will be treated as including one and any term of employment that attempts to prevent or restrict employees discussing their pay is unenforceable.

Pre-complaint conciliation

The procedure for bringing an employment complaint has also changed with the introduction of a Pre-Complaint Conciliation service before the stage of a formal complaint to the Tribunal.

Before a complaint is made, an employee must notify the Employment and Equal Opportunities Service (the EEOS) using an Intent to Complain form. The EEOS will then offer a service of Pre-Complaint Conciliation to settle potential complaints. This is a voluntary service and either party can refuse to take part.

If unsuccessful in settling the complaint, the EEOS will issue a certificate which will enable the employee, if they choose, to file a formal complaint against their employer by filing form ET1 that will be provided to the employee by the EEOS with the certificate.

Time to complain

The time limit for a complaint being presented to the Tribunal has been amended to three months from the date of the act complained of. This may be extended by permission from the Tribunal and this time limit does not include the period between the date of notification to the EEOS and the date of the certificate.

Increased maximum compensation

The maximum sum of compensation for employment complaints pertaining to discrimination has been increased to six months’ pay and a maximum of £10,000 for injury to feelings, hurt or distress.

The Tribunal can now join complaints against several people (e.g. an employer and individuals employed by them) where they relate to the same facts or circumstances. The maximum total award that can be made to a person in respect of joined complaints is nine months’ pay and £10,000 for injury to feelings, hurt or distress.

If you need any further information or legal advice, please contact our employment team Alison Antill, Charlotte Tomlinson and Robin Gist, who will be delighted to assist.