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"

http://www.guernseylegalresources.gg/article/97229/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

PART I
SEX DISCRIMINATION
 
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.

PART II
DISCRIMINATION IN THE EMPLOYMENT FIELD
 
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.

PART III
OTHER PROHIBITED ACTS
 
21.      Discriminatory practices.
22.      Discriminatory advertisements.
23.      Instructions to discriminate.
24.      Pressure to discriminate.
25.      Liability of employers and principals.
26.      Aiding prohibited acts.
 
PART IV
GENERAL EXCEPTIONS FROM PARTS II & III
 
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.

http://www.careyolsen.com/downloads/publications/sex_discrimination_guide_for_employers_in_guernsey.pdf

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.

 

Order Matters

We don't just remember. We re-enact, eating matzah, the unleavened bread of affliction, tasting maror, the bitter herbs of oppression, and drinking four cups of wine, each a stage in what Nelson Mandela called the long walk to freedom. And it all begins with the question asked by a child: why is this night different? I can still picture in my mind those nights long ago when I was the child. They gave me my first induction into the ideals I've tried to carry with me into adult life, above all a sense of fellow feeling with others who suffer, eating their own bread of affliction. (Jonathan Sacks)

I have always held the opinion that any tax which taxes life's essentials is immoral, unfair and falls disproportionately on the less well-off....The argument that has always been used by successive Ministers for Treasury and Resources in regard to GST is "keep it simple", "it's only 3%". I sign up to keeping things simple, but not to an inequity; it was wrong to tax these items at 3% and to consider taxing food and heating at 5% is indefensible (Andrew Green)

Does order matter?

Freeze GST for 6 months?

Freeze GST for a year?

Keep GST at 3%?

GST rise to 4%

GST to 5%, but with exemptions

GST to 6%, but with exemptions?

GST to 5%

Does the order in which a debate is carried make a difference to the final outcome? Where there are so many amendments on the table to the final option (GST at 5%), I think it could well make a difference, and that the person controlling the order by which the choices are given (the agenda maker) has great control over the outcome. There is a considerable body of literature which has examined this phenomena, starting with Schwartz's groundbreaking study on "Agendas and Control of Political Outcomes".

Understanding amendment rules and voting methods is important for political analysis because it reflects the degree to which outcomes depend on structure rather than votes

After a bill is reported to the floor and amendments are offered, the voting method employed can have significant effects on the final collective choice. The method of choosing between mutually exclusive legislative proposals, and the position of the status quo (i.e., when it comes up in the decision sequence and when it is the default alternative), varies across countries.

The voting agendas in place to decide on the details of the bill vary cross-nationally. The two most studied procedures are the so-called amendment and the sequential-elimination procedures. The first is employed primarily in Great Britain and its former colonies including the U.S., and the latter is mainly used in Continental Europe and Latin America. The two archetypical methods have existed since at least the Roman Empire (Farquharson 1969) (1)

Jersey uses the "amendment procedure" rather than the "sequential-elimination procedure"

Under the amendment procedure, amending votes precede an enacting vote: a draft bill is pitted against amended versions until, at the end, a surviving version is pitted against the status quo. The winner is the alternative chosen in the last vote, after all other alternatives have been voted at least once

Under the sequential elimination method, mutually exclusive alternatives are voted up or down in a given order. If a majority chooses one alternative, it is the outcome; voting on that section stops, and all other mutually exclusive alternatives are considered rejected. (1)

How can this effect outcomes?

In the 1950s Duncan Black first noted that under the amendment procedure the later an alternative enters the voting stage, the greater its chance of adoption. Under sequential elimination agendas, it is the opposite: the sooner and amendment comes up for voting, the greater its chance of winning (Farquharson 1969). (1)

So the order in which matters are presented in Jersey, and the amendment system means that the likehood is that items such as a 4% rise on GST rather than a freeze would have stood a better chance. In fact, Senator Francis Le Gresley tried to boost support for the freeze by withdrawing his own suggestion to raise GST to 4% instead of five. Philip Ozouf then (citing the "mood of the house"!!) withdrew the amendment to GST of 6% but exemptions from the table, so the only choice was over exemptions - against which he could argue a revenue loss, rather than a tax neutral option.

But if the freeze options had come last, before the final 5% with no exemptions, it would have been a straightforward tussle between the two options. With no other options in the pipeline, such as GST at 6% but with exemptions, there was always a chance that those who were convinced of exemptions, such as Andrew Green, Brian Le Marquand, Jacqui Hilton and Ian Gorst, might have voted for a freeze, which might have given time, both for a changed economic outlook, and, of course, a changed political outlook as with even the 6 months option (taking the rise to December 2010), a new house would be sitting.

As it stands, it is a "win win" situation for some politicians who voted against exemptions, such as John le Fondré, because come the next election, they can say they had voted for a delay in GST, and they can even get off Montfort Tadier's "GST Party Win's Again" list, even though they were only voting for a delay, not a cancellation!

(http://mtadier.blogspot.com/2010/12/gst-party-win-again.html )

Francis Le Gresley's vote was surprising, especially as the Citizen's Advice Bureau took a completely different line. Clearly once he had withdrawn his 4% offer, there was nowhere else for him to go but 5%, as he didn't want exemptions.

Jersey's citizens advice bureau says people living there less than five years will be hit hardest by the rise in the goods and services tax (GST). Malcolm Ferey, from the bureau, said they may not be able to apply for income support. Jersey politicians voted to keep GST on food and fuel and to increase the tax to 5% from June 2011. Malcolm Ferey said he was disappointed the States did not allow goods and services tax (GST) exemptions. He said there was a portion of the community that falls into the gap and loses out on support (BBC News)

Here is the voting list - it can be seen that Ian Le Marquand, Jacqui Hilton, Ian Gorst - who have consistently been elected on a mandate of exemptions on GST have continued to honour their commitment. Ministers or Assistant Ministers they may be, but they still show an independent which is to be welcomed, and which derives from thinking ethically rather than managerially about the debate. There is, I think, too little discussion of ethics, and what would constitute a just society, in today's politics, and too much concentration on a "fixit" economics. While we need to have a budget that works, we should also be mindful of the poorer members of society, and not just look for an easy managerial solutions.

Anne Dupre had another change of mind, citing 5% as too high, although less generously minded commentators such as myself think that as she voted against exemptions just after the last elections, she needed to do something to boost her credibility before next year's elections.

The Constables are split by 9 parishes to 3.

POUR: 24 CONTRE: 26 ILL: 3

CONTRE
Senator Terence Augustine Le Sueur
Senator Paul Francis Routier
Senator Philip Francis Cyril Ozouf
Senator Terence John Le Main
Senator Frederick Ellyer Cohen
Senator James Leslie Perchard
Senator Sarah Craig Ferguson
Senator Alan John Henry Maclean
Senator Francis du Heaume Le Gresley, M.B.E.
Connétable John Le Sueur Gallichan
Connétable Daniel Joseph Murphy
Connétable Michael Keith Jackson
Connétable Silvanus Arthur Yates
Connétable Graeme Frank Butcher
Connétable Peter Frederick Maurice Hanning
Connétable Leonard Norman
Connétable John Martin Refault
Connétable Juliette Gallichan
Deputy Robert Charles Duhamel
Deputy John Benjamin Fox
Deputy James Gordon Reed
Deputy John Alexander Nicholas Le Fondré
Deputy Anne Enid Pryke
Deputy Angela Elizabeth Jeune
Deputy Edward James Noel
Deputy Tracey Anne Vallois

POUR
Senator Ben Edward Shenton
Senator Alan Breckon
Senator Bryan Ian Le Marquand
Connétable Kenneth Priaulx Vibert
Connétable Alan Simon Crowcroft
Connétable Deidre Wendy Mezbourian
Deputy Frederick John Hill, B.E.M.
Deputy Roy George Le Hérissier
Deputy Judith Ann Martin
Deputy Geoffrey Peter Southern
Deputy Carolyn Fiona Labey
Deputy Jacqueline Ann Hilton
Deputy Paul Vincent Francis Le Claire
Deputy Shona Pitman
Deputy Kevin Charles Lewis
Deputy Ian Joseph Gorst
Deputy Philip John Rondel
Deputy Montfort Tadier
Deputy Daniel John Arabin Wimberley
Deputy Trevor Mark Pitman
Deputy Anne Teresa Dupre
Deputy Michael Roderick Higgins
Deputy Andrew Kenneth Francis Green M.B.E.
Deputy Jeremy Martin Maçon

ILL
Deputy Collin Hedley Egré
Deputy Sean Power
Deputy Deborah Jane De Sousa

Links:
http://www.eduardoaleman.net/LRAPealeman.pdf