Monday, 1 October 2012

Sex Discrimination in Jersey

I was hearing with total astonishment that it is difficult for Jersey to bring sex discrimination into the new Discrimination Law, which will be a pared down version, concentrating primarily on race. Apparently, or so the BBC reports, sex discrimination legislation is much more complicated to bring in.

That is no doubt why Guernsey, wanting to get something difficult out of the way before Jersey, put in place "The Sex Discrimination (Employment) (Guernsey) Ordinance, 2005"

It's worth looking at the sections listed here, because these are what are obviously needed in Jersey, and are much, much too complicated to bring in, or so we are told. That would have a little bit more credibility if Guernsey hadn't managed it over five years ago.

On the matter of women and maternity leave, in February 2012, Guernsey's States approved maternity leave for mothers that will come into force in January 2014. Senator Francis Le Gresley said he was working hard on changing primary legislation in Jersey so a new maternity law could be introduced by 2014.

Curiously, The Jersey Advisory and Conciliation Service in their 2011 report note that:

"There has been much media comment during the year and in our previous reports about the lack of Discrimination Laws and we understand that draft legislation will be debated in 2012 with a view to its introduction in the following year. Initially it is thought that changes to the State pension age will mean that age discrimination is now likely to be the first area to be addressed, with sex discrimination closely following as this is considered necessary before the introduction of the proposed Maternity, Paternity and Family Friendly Law. Remaining areas of discrimination will be addressed subsequently"

So if Senator Le Gresley wants to introduce a maternity law, it looks likely that he'll have to return to extend the Discrimination Law first. It can been seen that maternity features (as one might expect) in the Guernsey Law.

And Guernsey too, can benefit from Jersey. Guernsey is working on race discrimination legislation, but has given sex discrimination laws priority. Guernsey has been resting on its laurels having approved sex discrimination legislation, and done nothing on race discrimination since that was passed.

Aren't the Islands looking to work better together? Perhaps Senator Le Gresley would do well to make a fact finding trip to Guernsey to discover how complicated matters which need careful consideration have been carefully considered and brought into law, and his Guernsey counterparts can look at race discrimination again.

The Sex Discrimination (Employment) (Guernsey) Ordinance, 2005

1.      Direct and indirect discrimination against women.
2.      Sex discrimination against men.
3.      Discrimination on the grounds of gender reassignment.
4.      Direct and indirect discrimination against married persons.
5.      Discrimination by way of victimisation.

6.      Discrimination against applicants and employees.
7.      Exception where sex is a genuine occupational qualification.
8.      Corresponding exception relating to gender reassignment.
9.      Supplementary exceptions relating to gender reassignment.
10.      Discrimination against contract workers.
11.      Meaning of "employment at an establishment in Guernsey".
12.      Partnerships.
13.      Trade unions, etc.
14.      Qualifying bodies.
15.      Persons concerned with provision of vocational training.
16.      Employment agencies.
17.      Legal relationships which have come to an end.
18.      Police.
19.      Prison officers.
20.      Ministers of religion, etc.

21.      Discriminatory practices.
22.      Discriminatory advertisements.
23.      Instructions to discriminate.
24.      Pressure to discriminate.
25.      Liability of employers and principals.
26.      Aiding prohibited acts.
27.      Charities.
28.      Sport, etc.
29.      Insurance, etc.
30.      Communal accommodation.
31.      Discriminatory training by certain bodies.
32.      Other discriminatory training, etc.
33.      Trade unions, etc: elective bodies.
34.      Indirect access to benefits, etc.
35.      Acts done for the protection of women.
36.      Acts safeguarding national security.

There's also a very good briefing note by Carey Olsen, an extract from which I give below, but the whole is worth reading as well. It shows how the law works in Guernsey.

The Sex Discrimination (Employment) (Guernsey) Ordinance, 2005 came into force on 1 March 2006. The Ordinance outlaws all discrimination on grounds of:
. sex;
. gender reassignment; or
. marital status in employment.

The Ordinance also provides a procedure for complaints of discrimination to be made to the new Employment and Discrimination Tribunal.

The Ordinance defines the three types of sex-based discrimination, which are: direct discrimination, indirect discrimination and victimisation. It also defines gender reassignment-based discrimination and marital status-based discrimination. This paper focuses on sex-based discrimination.

Three Definitions
Direct Discrimination: the favourable or less favourable treatment of one person over another.
Indirect Discrimination: putting some sort of obstacle in the way of someone with which they find it difficult to comply because of their gender.
Victimisation of someone on account of their being involved in a sex discrimination complaint under the Ordinance is itself discrimination.

How might the employee show that they have been directly discriminated against?
The employee will have to show that:
. they have been treated less favourably than a person of a different gender; and
. the reason for the less favourable treatment is on the grounds of their gender, i.e. but for the fact she was a woman, she would not have received the less favourable treatment.

In order to prove that they have been discriminated against, the employee will have to find someone with whom to compare themselves. This person must be in the same or similar position to the person bringing the complaint. The employee will also have to show that their less favourable treatment was as a result of their
gender and not for other reasons such as poor performance or behaviour for the same job? Does sex discrimination need to be considered?

It is unlawful to discriminate on the grounds of gender in relation to the arrangements an employer makes for the purpose of determining who should be offered employment and any arrangements during employment. This means that an employer cannot discriminate against either sex when doing any of the following:
. drawing up job specifications;
. advertising positions available;
. instructing an employment agency;
. interviewing (e.g. do not ask the employee if they are married, it should not affect their ability to do their job!);
. deciding how much to pay someone;
. deciding on whether to promote someone;
. deciding on whether to offer a person a bonus;
. deciding on whether to give some employees access to better facilities or benefits;
. deciding to dismiss someone.



Anonymous said...

I can tell you with a high degree of certainty that the complex nature of employment and discrimination legislation has very little to do with delays in introduction of such legislation.
Yes, such legislation is complex - but so are many other areas of law. It is, and always has been, a question of political will. I could go further and say that successive Ministers and, prior to the ministerial system, successive States Committees have actively resisted the introduction of such legislation and, at very best, have shied away from legislation because of opposition from employers and others with vested interests.
We know only too well that the States can ram through very complex legislation in record time when it puts its mind to it - the most infamous example being the Limited Liability Partnership legislation - but also including all sorts of legislation designed to support the finance industry.
Comprehensive recommendations for employment and discrimination legislation were put to and considered by the then Social Security Committee as long ago as 1997. Progress relating to the introduction of such legislation since then is a matter of historical fact.
No - there are no reasons for delays, only excuses.

Anonymous said...

Some cynics are suggesting that the States' motive is to create something so cocked-up that it will put attempts at implementing other anti-discrimination laws out of court.

I note, incidentally, that the Guernsey law makes no mention of taxation - Jersey law still treats wives as chattels; perhaps the cost of unpicking that is what is bothering the States?