FAQs - General
Here are some frequently asked questions and some definitions that might be useful.
Q: Will the Ordinance apply in Alderney or Herm?
A: It will apply in Guernsey, Herm and Jethou but not in Sark, Alderney or Brecqhou.
Q: Does the new Discrimination Ordinance prohibit bullying?
A: Bullying is only covered to the extent it relates to a Protected Ground. Where this is the case, the bullying may well constitute unlawful harassment.
For Employment see Employment Guide Chapter 1 - Discrimination and other prohibited conduct and Chapter 2 - Protected Grounds.
For Service Providers see Service Providers Guide Chapter 1 - Discrimination and other prohibited conduct and Chapter 2 - Protected Grounds..
Q: Will the tribunal provide support for disabled people who may have difficultly articulating their complaint?
A: Yes, support will be provided through the Employment and Equal Opportunities service for anyone contacting them to discuss raising a complaint. Anyone bringing a claim to the tribunal will also be provided with support.
Q: Is there a list of different disabilities that are protected under the new legislation?
A: There is no list of conditions. A disability is defined as an impairment which has lasted, or is expected to last for not less than 6 months, or it is expected to last until the end of a person’s life. See Employment Guide Chapter 2 - Protected Grounds or Service Providers Guide Chapter 2- Protected Grounds.
Q: Does the definition of disability include mental health conditions includes as well as physical ones?
A: Yes, any long-term impairment is covered, including physical and mental health conditions. Long-term is defined as a condition which is expected to last for not less than 6 months or it is expected to last until the end of a person’s life. See Employment Guide Chapter 2 - Protected Grounds or Service Providers Guide Chapter 2- Protected Grounds.
Q: Are reasonable adjustments legally required across all five Protected Grounds or just disability?
A: The duty to make reasonable adjustments only applies to disabled persons. However, duty holders may need to make reasonable adjustments for those with other protected grounds who are placed at a disadvantage by a provision, criterion or practice, in order to avoid claims for indirect discrimination. See Employment Guide Chapter 3 - Reasonable adjustments or Service Providers Guide Chapter 3- Reasonable adjustments
Q: What is injury to feelings?
A: This describes when someone has suffered upset, distress or anxiety as a result of discrimination, harassment or victimisation.
Q: How will the compensation for injury to feelings be determined?
A: Once a discrimination, harassment or victimisation complaint is upheld, then compensation can be awarded for injury to feelings where the Tribunal decides it is appropriate. It will be issued on a banded scale depending on the severity of the situation. This is called "Compensation for injury to hurt feeling or distress" and it is a normal part of the awards structure in discrimination legislation elsewhere. See Sex Discrimination Ordinance- and Prevention of Discrimination Ordinance.
Q: What is objective justification?
A: This applies to indirect discrimination and discrimination arising from disability and is where a policy or procedure might put someone at a disadvantage. The employer or service provider has to show that they have a legitimate aim and that the action taken is a proportionate way of achieving that aim, i.e. that it cannot be achieved in a less discriminatory way. See Employment Guide Chapter 1 - Discrimination and other prohibited conduct or Service Providers Guide Chapter 1 - Discrimination and other prohibited conduct .
Q: What is a disproportionate burden?
A: When the circumstances are such that it would be unreasonable for an employer or service provider to provide an adjustment. This might be due to expense, disruption, or other practical factors.
Q: Where does the burden of proof lie?
A: Where an individual brings a claim, they must prove that there are facts from which the Tribunal could decide or draw an inference that there has been discrimination. This is sometimes referred to as demonstrating a prima facie case.
If an individual has satisfied the Tribunal that there are facts from which it could conclude that there has been discrimination, then the burden of proof shifts to the organisation/individual responsible under the Ordinance (the duty bearer). In order to be able to defend a claim, the duty bearer will have to prove, on the balance of probabilities, that they did not act unlawfully. If the duty bearer’s explanation is inadequate or unsatisfactory, the Tribunal may decide that the act was unlawful.
This is the same as for the Sex Discrimination Ordinance.
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