FAQs - Employment
Here are some frequently asked questions about employment.
Q: Do employees need to work a minimum number of hours a week or be above a certain age in order to be protected under the new Discrimination Ordinance?
A: No, all employees are protected (from discrimination, harassment or vicitmisation due to protected grounds). See Employment Guide Chapter 2- Protected Grounds.
Q: Do employees need to have worked for an employer for a particular length of time in order to be protected under the Prevention of Discrimination Ordinance?
Q: As an employer do I need to employ someone who is disabled over someone who is non disabled?
A: No. If someone has a disability a reasonable adjustment should be considered. You must then undertake your normal recruitment process and employ the best person for the job, with or without the disability. There is no requirement to employ someone who can’t do the essential functions of a role. See Employment Guide Chapter 3 reasonable adjustments and and Chapter 6 - recruitment.
Q: Can I ask about someone’s health during recruitment so that I can check that they can do the job applied for?
Q: Can an employer undertake a capability procedure on someone with a disability?
A: Yes, but they must ensure that reasonable adjustments have been considered which will enable the person to undertake their role. If adjustments have not been considered or if they have not been put into place before a capability procedure is undertaken, then if a complaint is raised with the Tribunal, then it may be upheld. See Employment Guide Chapter 3 reasonable adjustments and and Chapter 7 - managing staff.
Q: What is a guaranteed interview scheme?
A: This is a scheme that ensures that a disabled applicant can be offered an interview if they meet the essential criteria of a role. This does not however, mean the disabled applicant must be offered the position, unless they are the best person for the role.
Q: Would it be considered discriminatory if an employer granted an employee (who had carer status) complete flexible working or the ability to work from home, but did not agree to this for another member of staff?
A: The Prevention of Discrimination Ordinance allows disabled people or people with carer status to be treated more favourably for the purpose of removing or mitigating a disadvantage. If the other colleague also had a Protected Ground, then their request must also be considered, and the decision justified at the time of the request. See Employment Guide Chapter 3 reasonable adjustments and and Chapter 2 - Protected Grounds
Q: If a staff members performance decreases, can you ask them if this might be due to an underlying health condition?
A: You should ask the person if there is an underlying reason for their performance issues. You should discuss what reasonable adjustments might be appropriate, either on a permanent or temporary basis. If they deny there is a problem, and you are concerned, you might also consider referring them to occupational health (bearing in mind) data protection requirements). See Employment guide Chapter 7 - managing staff.
Q: Can an organisation restrict training to meet a budget? Would this be seen as discrimination?
A: Yes, an organisation can restrict training to meet a budget. It would only be discrimination if that training was restricted on the basis of one of the Protected Grounds. If everyone is restricted and treated equally, that’s not discrimination. See Employment Guide Chapter 2- Protected Grounds.
Q: If a role becomes vacant and the organisation recruits a replacement at a lower rate of pay, would this contravene the Prevention of Discrimination Ordinance?
A: Only if the lower rate of pay was due to a Protected Ground, or because of indirectly discriminatory pay practices. See Employment guide Chapter 4- Equal pay terms and conditions.
Q: On what grounds could an employee bring a claim for equal pay?
A: Under the Prevention of Discrimination Ordinance, claims can be brought based on disability, carer status, race, religion or belief or sexual orientation. An employee who considers that they have been paid less due to their sex, gender reassignment, marital status or maternity leave cannot bring a claim for equal pay (as these Protected Grounds are not yet included in the new Discrimination Ordinance). However, they may be able to bring a claim for direct discrimination under the Sex Discrimination (Guernsey) Ordinance, 2005. See Sex Discrimination in the workplace guide.
Q: If an employee wants to reduce their hours but they are working under an employment permit which requires the role to be carried out on a full time basis, is this a good reason for refusing to adjust their hours?
A: Yes, employers only need to make adjustments that are reasonable, and if an adjustment would result in the employee breaching the terms of their employment permit, it would not be considered to be reasonable. See Employment Guide Chapter 3- reasonable adjustments.
Q: Is it discriminatory to allow one employee to work flexibly (due to a Protected Ground) but not to allow another employee to do so?
Q: Can employers positively discriminate in recruitment?
A: Employers can take positive action with the aim of ensuring equality or a greater degree of equality on any of the protected grounds. This would permit an employer to set up recruitment events targeted at employees from underrepresented groups. However, it would be unlawful to impose quotas in recruitment or to appoint someone because they have a protected ground, where there is another candidate who would be better qualified for the role. See Employment Guide chapter 6 - recruitment.
Q: Do I need to offer reasonable adjustments for someone so that they can meet the essential criteria of the role?
A: Yes, as an employer it is a duty to consider reasonable adjustments to enable someone to undertake a role. These adjustments can vary, from amending working hours, to providing appropriate software for a computer, to relocating someone to an appropriate work environment. Training about reasonable adjustments is available to book here.
Q: Are small employers exempt from providing reasonable adjustments for their staff?
A: No, the requests for reasonable adjustments should be considered as long as they do not cause a disproportionate burden to the employer. It is appreciated that smaller employers may have less capacity or less financial means to be able to provide as much as larger employers.
Q: Will any support be available for small employers who need financial support to be able to provide reasonable adjustments?
A: The Committee for Employment & Social Security is currently developing an access to work scheme. This will provide financial support for small employers to assist with the provision of reasonable adjustments. More information will be available shortly. Please follow the LINK.
Q: How can employers work out whether a reasonable adjustment, which has been requested by an employee, is really needed?
A: The employee will usually be a good judge as to whether or not a particular reasonable adjustment is required, but in some situations the employer may wish to seek advice (with the persons permission), to check that the requested reasonable adjustment would assist the employee and/or whether any other reasonable adjustments should be considered.
Q: Can you ask new employees to declare if they require any reasonable adjustments before they join to allow you to prepare?
A: Yes. The most appropriate time to ask these types of questions is likely to be during the interview process, when you can discuss with all candidates the key requirements for / elements of the role and enquire as to whether they would need any reasonable adjustments to carry these out. The Ordinance specifically enables you to ask questions during a recruitment process if the questions are necessary to establish whether the applicant will be able to carry out a function that is intrinsic to the work concerned. It would also be advisable to ask applicants whether they require reasonable adjustments to the recruitment process itself.
Q: An employee has requested a piece of equipment to assist with their impairment can we ask for a medical opinion before providing this?
A: Yes, this could be appropriate to ensure the equipment is suitable for their needs, but you may be able to decide this without medical advice by discussing this with the individual.
A medical opinion might also be useful where someone has had an extended absence or a series of absences. If the employer wanted a medical opinion, they would need to pay for this (after considering data protection).
Q: How do you determine whether the cost of making a reasonable adjustment to physical features is disproportionate or not? Is this based on assets, number of staff members or profitability?
A: This is not just about the cost of the adjustment but also about the financial resources of the company and practical considerations. A larger company may be expected to provide more costly adjustments.
Q: Where medical advice is sought regarding a disabled or potentially disabled employee, should the questions be tailored to the employee's role and situation?
A: Yes. This helps to ensure that the advice received is as relevant as possible.
Q: What should an employer do if it is not clear whether or not an employee's medical condition is likely to last 6 or more months, and qualify as a disability?
A: In these circumstances, the employer can ask the employee to provide medical evidence regarding the likely duration of their condition.
Q: Can an employee be considered disabled even though they do not yet have a formal diagnosis?
A: Yes, provided that the employee has a physical, mental or other impairment which is expected to last 6 or more months, they will be considered disabled. They do not need to be able to show that they have a diagnosed medical condition.
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