The states of deliberation (the states) approved the new Prevention of Discrimination (Guernsey) Order 2022 on September 28. Employers will have one year to make the necessary preparations, with confirmation that the order will come into effect on October 1, 2023 (subject to state approval).
Under the new legislation, employers will have increased legal obligations and a wider range of characteristics will be protected against discrimination, so companies will have to check their employment contracts and personnel policies to ensure that they are aligned with the new requirements.
The Ordinance incorporates changes to the existing anti-discrimination regime and extends the scope of the employment law to cover those providing goods and services, schools and education providers, clubs and associations and accommodation providers. The Ordinance also introduces a positive obligation for employers and service providers to make reasonable accommodations for a person with a disability.
The new protected lands are:
- caregiver status;
- sexual orientation; and
- Religion or belief.
The key principles underlying the legislation are fairness, equality, justice, dignity and proportionality.
A number of amendments have been debated by states and the results of some of the more significant changes to the ordinance are presented below to give employers time to assimilate them and ensure they are fully prepared for any changes they may need to make.
Amendment 2 (religion or belief)
The protected ground of “religious belief” has been extended to “religion Where creed”. A philosophical belief (or lack thereof) that is not based on religion is now potentially protected from discrimination under this protected ground.
Amendments 3 and 17 (amendments, code of practice and guidance)
While amendments and codes of practice made under the order will need to be approved by the states (by regulation) before coming into force, the employment and social security committee will be authorized to issue guidance non-statutory to explain people’s rights and duties under the order, including information on what is required in an accessibility action plan.
Amendment 14 (definition of the employment contract)
A narrow definition of ‘hiring contract’ was proposed to explicitly exclude a contract for services. The definition has been amended to clarify that it means only ‘a service or apprenticeship contract, whether express or implied, whether written or oral..
Amendment 12 (skills and professional qualifications)
Clarification has been added so that ‘for the avoidance of doubt’ a professional order does not discriminate against a person by imposing requirements relating to the possession of relevant skills, experience and professional integrity or by requiring the passing of examinations.
Amendment 7 (immigration and population management)
Decisions made on immigration applications, permissions and permission to enter or stay in Guernsey will not be required to be “necessary in the public interest” to fall under the exception. The requirement that measures taken for the purpose of population management must be “a proportionate means of achieving a legitimate aim” to fall within the exception has also been removed.
Amendment 9 (freedom of expression)
A freedom of expression exception has been included to clarify that the expression of an opinion, political opinion, religious belief or any implied or actual opinion or position on a subject does not constitute itself an act of discrimination prohibited by the ordinance. , except in cases of victimization or harassment.
Amendment 16 (compensation for victimisation)
The new law will allow the Tribunal to award compensation for victimization beyond the maximum compensation limit for joined claims for the following reasons:
- victimization aims to discourage complaints;
- seeks to underdetermine legislation; and
- victimization is likely to be an intentional act.
Not all proposed amendments were accepted. Some of the more notable amendments that were defeated are listed below.
- An exception for small businesses, for businesses with five or fewer employees, from the obligation to make reasonable accommodations for a person with a disability and from the proactive obligation of service providers, schools and education providers to towards people with disabilities in general;
- Abolition of specific equal pay protection;
- Reduction of the amount of compensation for “discriminatory remuneration” from six years to three years of salary arrears;
- Reduction of the maximum amount of compensation payable for injury to feelings, injury or distress from £10,000 to £5,000.
A copy of the order and amendments can be found at the Prevention of Discrimination (Guernsey) Order, 2022 – States of Guernsey (gov.gg)