Note: This document provides summary guidance only and must not be treated as a complete and authoritative statement of the law.
The Prevention of Discrimination (Guernsey) Ordinance, 2022 (“the Ordinance”) makes it unlawful to discriminate against a person on the grounds of disability, race, carer status, sexual orientation and religion or belief in Guernsey, Herm and Jethou. These are referred to in the Ordinance as Protected Grounds.
This summary guidance document is issued by the States of Guernsey’s Committee for Employment & Social Security to provide guidance in respect of people's rights when accessing employment and duties when providing employment. A more detailed guidance document is available here.
This document does not provide information in respect of discrimination on the grounds of sex, maternity or pregnancy, marital status or gender reassignment. Guidance about these Protected Grounds can be found here. Sex Discrimination at work.
More information can be found by following the link at the end of each section to the relevant chapter of the main guidance document.
Chapter 1: Discrimination and other prohibited conduct
Discrimination is when someone is treated unfavourably. It is important to understand that discrimination arises in lots of different contexts, and it can often be unintentional. However, because of the impact of discrimination on the individual, intent is generally considered irrelevant when considering whether or not discrimination has taken place.
Why do we need this law?
The Ordinance has been prepared to ensure that employers:
- eliminate discrimination and other unlawful conduct (i.e. harassment and victimisation);
- advance equality of opportunity for everyone;
- provide reasonable adjustments to ensure that persons with disabilities are not placed at a substantial disadvantage; and
- provide equal pay and equal treatment.
When is discrimination unlawful?
Discrimination against both employees and prospective employees (i.e. job applicants) because of a Protected Ground will be unlawful when the Ordinance enters into force on 1 October 2023.
Types of discrimination
Direct discrimination is treating someone less favourably than another person (or people) in a similar situation or circumstances. The reason for the different treatment must be clearly linked to one or more of the Protected Grounds for it to be unlawful.
It would be direct discrimination on the grounds of religion or belief for an employer to refuse to employ a candidate because they are a Muslim. It would also be direct discrimination to refuse to employ a candidate because it is imputed (assumed) a candidate was Muslim (for example they may be of Asian origin), even if they do not have a Protected Ground.
Direct discrimination cannot be objectively justified, but there are some exceptions under the Ordinance which allow discriminatory treatment that would otherwise be unlawful; for example, where an employer is able to demonstrate that there is an occupational requirement for a person to have a particular Protected Ground and that requirement is a proportionate means of achieving a legitimate aim. This is known as a “genuine and determining occupational requirement”.
It would be a genuine and determining occupational requirement for a Catholic priest to be Catholic.
Indirect discrimination happens when there is a policy (which may include any provision, criterion or practice) that applies in the same way for everybody but disadvantages a group of people who share a Protected Ground, and a person is disadvantaged because they are part of this group. It can be lawful to have specific rules or arrangements in place which lead to a disadvantage for an individual, as long as there is a good reason for it – this is known as objective justification. In order to objectively justify a policy, an employer would need to show that their policy is designed to achieve a “legitimate aim” and the action being taken is a proportionate means of achieving that aim (i.e. the aim cannot be achieved in a less discriminatory way).
An employer has a policy of banning necklaces in a workplace where they operate heavy machinery. This policy would be considered to be a provision, criterion or practice. This might place workers who wear necklaces to show their faith at a disadvantage. However, if an employer can show there’s a good health and safety reason, this would be considered to be a legitimate aim, and if it is proportionate (i.e. there is no other way to achieve the health and safety objective), then it would still be lawful.
The following must be considered to prove indirect discrimination:
- there must be a policy which applies equally to everyone (or to everyone in a group that includes the person making the discrimination complaint);
- the policy must disadvantage people with a particular Protected Ground when compared with people without it;
- it must be possible to show that it has disadvantaged the individual personally or that it will disadvantage them;
- there is no objective justification for the policy (i.e. there is no good and proportionate reason for applying the policy).
Discrimination by association occurs when a person is treated less favourably because they are linked or associated with a person who has a Protected Ground.
It would be discrimination by association if an employer chose not to employ a parent of a disabled child as they were concerned about the amount of time off they may require.
Discrimination arising from disability is when a person is treated unfavourably because of something that arises as a consequence of their disability (e.g. having an assistance dog, needing time off for medical appointments, or side effects from drugs that alter behaviour) and which cannot be objectively justified.
If an employee with cancer is prevented from receiving a bonus because of time they have taken off to receive medical treatment, this would constitute unfavourable treatment because of something arising from disability. It would therefore be necessary for the employer to demonstrate its decision not to award a bonus to the employee was objectively justified, perhaps by looking at the individual’s performance before the condition was diagnosed or, if following diagnosis, during a period where they were well enough to work. It might be reasonable to pro-rata the bonus accordingly.
If the employer could show that they did not know the employee was disabled, and could not reasonably have been expected to know that they were disabled, then the employer would not be liable.
Other unlawful treatment
Harassment and victimisation are both unlawful.
Harassment is any form of unwanted conduct related to a Protected Ground which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
Sexual harassment is any unwanted conduct of a sexual nature which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
Harassment can also be related to the rejection or submission to unwanted conduct.
It doesn’t matter if the conduct was intentional or whether the victim did or did not make the perpetrator aware that the conduct was unwanted.
There is an exception under the Ordinance relating to freedom of expression of an opinion, political view, religious belief and any other implied or actual view. However, the exception cannot apply when there has been deliberate or intentional harassment, or, where the conduct occurred in circumstances where it would appear to a reasonable person that the conduct was create an intimidating, hostile, degrading, humiliating or offensive environment.
Victimisation arises when a person is subjected to a detriment because they have complained about discrimination or harassment or they intend or make a complaint, or they have helped someone else make a complaint.
More information can be found in the Employment guide Chapter 1.
Chapter 2: Protected Grounds
The Ordinance makes it unlawful to discriminate against someone because of what are known as “Protected Grounds”. When the Ordinance comes into force there will initially be five Protected Grounds.
Disability. A person has a disability if they have one or more long-term impairments. Long-term means an impairment which has lasted, or is expected to last, for not less than six months; or is expected to last until the end of the person's life.
Race can mean a person’s colour, nationality, ethnic origins, national origins or descent, which includes caste. A racial group can comprise of two or more distinct groupings, such as Russian Jews, Gypsies and Irish travellers, etc.
Carer status refers to someone who provides continuing, regular or frequent care or support for another person. The carer must be a close relative of, or live with the person that they care for. The person receiving the care or support must fall within the definition of the Protected Ground of disability (i.e. they must have one or more long-term impairments).
Sexual orientation describes who a person is attracted to. Discrimination, on the grounds of someone’s sexual orientation, would include treating someone less favourably because of who they are attracted to (e.g. that they are gay, lesbian, bisexual or heterosexual).
Religion or belief. Religion means any religion and includes any religious background or outlook or a lack of religion. Belief means any religious or philosophical belief and includes a lack of belief.
More information can be found in the Employment Guide Chapter 2
Chapter 3: Duty to make reasonable adjustments
It is recognised that achieving equality for disabled people may mean changing the way that employment is structured in order to create a level playing field for all.
The Ordinance introduces a duty to take steps to remove, reduce or prevent the obstacles that a disabled employee or job applicant may face in the workplace, where it is reasonable to do so. This is known as the duty to make reasonable adjustments and where an employer fails to do comply with this duty, this will be unlawful under the Ordinance.
What is a reasonable adjustment?
The need for an adjustment arises where there is substantial disadvantage which is:
- caused by a provision, criterion or practice (PCP);
- caused by a physical feature; or
- able to be removed by an auxiliary aid.
For the purposes of the Ordinance the phrase “substantial disadvantage” simply requires there to be a disadvantage that is more than minor or trivial. This is not intended to be a high bar.
Provision, criterion or practice (PCP) means, in broad terms, any form of policy or rule in the workplace that applies to everyone, such as a dress code, hours of work, or absence polices, but places a disabled person at a substantial disadvantage.
A physical feature means a feature arising from the design or construction of a building, the approach, exit or access to a building or a fixture or fitting in or on the premises.
Auxiliary aids are defined as equipment or a service that is used by a disabled person to provides assistance which compensates for or removes the disadvantage connected with their disability. The equipment might be an adapted keyboard, chair or text to speech software. A service could include the provision of a sign language interpreter or a support worker for a disabled worker.
Though the obligation to make adjustments to physical features does not come into force until 1 October 2028 at the earliest, the duties in relation to any provision, criterion or practice, or auxiliary aids are in force from 1 October 2023.
What is considered reasonable will be an objective decision and not simply a matter of what the employer or the disabled person may personally think is reasonable. These factors can include:
- effectiveness of the adjustment to reduce or remove the disadvantage that the disabled employee or job applicant would otherwise experience;
- the practicality and/or effect on the business;
- the cost;
- the length of a tenancy in the case of changes to physical features of a building;
- the organisation’s resources and size;
- the availability of financial support; and
- other considerations such as planning, building control or fire safety, where applicable.
Making an adjustment to remove the disadvantage and create equality of opportunity for a disabled person in this way will not count as discrimination against a person who does not have a disability, or that particular disability.
An employer has a duty to consult the disabled person to ask their view as to what adjustment would be appropriate to consider. Whilst many adjustments will be straightforward and can be agreed directly with the individual, from time to time it might be useful to consult with others, such as medical professionals, to gain advice (this would need to be with the individual’s permission as employers must comply with the Data Protection (Bailiwick of Guernsey) Law, 2017).
Who pays for the adjustment?
The cost of the adjustment must be met by the employer. But the employer does not have to provide the adjustment if it would be a disproportionate burden for them to do so. In determining whether an adjustment is a disproportionate burden, the cost of the adjustment may be taken into consideration, but not in isolation. The resources of the employer/business and practical considerations should also be taken into account. There may also be financial support available to employers (e.g. through the Access to Work Scheme or the Back to Work Scheme, both administered by the Committee for Employment & Social Security).
More information can be found in the Employment Guide chapter 3
Chapter 4: Equal pay and terms and conditions
The Ordinance introduces the rights of equal pay and equal treatment.
The right of equal pay ensures that two people in the same employment (one with a Protected Ground and the other without the Protected Ground) performing equal work must receive equal pay, unless any difference in pay can be justified through what is known as a material factor defence. Equal pay includes not only the basic salary or rate of pay of the employee but also other financial benefits, such as bonuses, or rights under a pension scheme. The Right of Equal Treatment covers any other terms and conditions of employment, such working hours, holiday and break entitlements.
A material factor defence is when an employer is able to justify different pay or treatment due to a meaningful and genuine reason, which is not either directly or indirectly discriminatory.
Pay secrecy clauses are included in some contracts of employment and are designed to prevent employees from disclosing their pay to another employee, or from asking a colleague about their pay. This might make it very difficult in practice for individuals to be able to pursue a claim for equal pay. The Ordinance makes such pay secrecy clauses unenforceable, where they relate to making enquiries for the purposes of enforcing a person’s right to equal pay. If asked for information in these circumstances, a person can disclose their pay. This is known as a relevant pay disclosure. A person must not be victimised by their employer for seeking a relevant pay disclosure or for providing, or receiving, information in this way.
More information can be found in the Employment Guide Chapter 4
Chapter 5: Employment and other arrangements
The legislation focuses primarily on the employer and employee working relationship, but it does apply equally to a number of other working arrangements or work-related services, such as:
Contract workers - A person who is employed by one person, and supplied to a third party to undertake work.
Employment agencies - A business which provides services for the purposes of finding employment for people, or of supplying employers with people to do work.
Vocational training providers - An organisation which provides training for employment.
Partnerships - A business where two or more people share the ownership and the responsibility for managing the business.
Personal office holder - Any office or position to which a person is appointed to perform a function personally under the direction of another person.
Public office holder - A person appointed by, on the recommendation of, or subject to the approval of the States of Deliberation, the States of Election, or any Committee of the States, or the Royal Court.
Professional and trade organisations - An organisation of employees, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists.
Professional bodies - An authority or body that is empowered to confer, extend, renew or withdraw a qualification or authorisation, that is needed for a particular profession, trade or occupation.
All of the above must not, in their professional role, victimise or harass a person and is subject to the reasonable adjustment duty.
More information can be found in the Employment Guide Chapter 5
Chapter 6: Recruitment
Equality smart recruitment is good for businesses as well as complying with the Ordinance. It is about ensuring you get the best person for the job based on merit alone and free from any bias in relation to any of the Protected Grounds that are not relevant to the person’s ability to do the job. Employers must be careful not to discriminate against job applicants at any point of the recruitment process.
What is unconscious bias?
Unconscious biases are social stereotypes about certain groups of people that individuals form which are based on their own background, culture, context and personal experiences and outside their own conscious awareness. We all have unconscious biases. It is important to be aware of unconscious bias, how it can influence decisions and take steps to address it.
Job descriptions, person specifications and advertisements
Job descriptions and advertisements should be written carefully to ensure they do not discriminate. Requirements that may place some people at a disadvantage should be avoided unless they can be objectively justified or they are a genuine and determining occupational requirement. Most roles will require a candidate to have some specific skills, qualifications or other requirements for the job in question and sometimes these requirements, by the very nature of the job, will exclude some people or make it more difficult for them to satisfy those requirements. Provided these can be objectively justified this won’t amount to indirect discrimination.
A job description should state what the job is for and what the person doing it needs to do to meet the needs of the role. It should only ask for the necessary requirements of the job.
A person specification, that sits alongside the job description, should list the skills, qualities and experience the ideal candidate should have to perform the role. Care must be taken to ensure that the person specification is clearly linked to requirements for undertaking the key criteria of the role. Both of these elements are important to avoid indirect discrimination.
Whilst there is no legal requirement to advertise a job, it is often the way in which vacant positions are made known to the general public. It is unlawful to either place or publish a discriminatory advert. Employers should consider stating their commitment to equality within any job advert and making it clear that reasonable adjustments will be made as part of the recruitment process.
A positive action in the context of recruitment is when steps are taken to promote greater equality of opportunity in relation to a Protected Ground. In employment, it can only be used to encourage people to apply for a job. It cannot be used to restrict the job opportunity only to someone with a particular Protected Ground or result in an applicant being preferentially appointed because they have a Protected Ground. This would be positive discrimination and is unlawful.
Questions about disability, health and other Protected Grounds
Employers should not ask questions about an individual’s disability, health or other Protected Grounds during a recruitment process, except in limited circumstances, which broadly fall into four main categories:
- To check the individual’s ability to carry out a function that is intrinsic to the work;
- To make reasonable adjustments as part of the recruitment process;
- To undertake diversity monitoring;
- Where it is not prohibited under the Ordinance, such as if there is a genuine and determining occupational requirement.
If a church was recruiting a youth worker to promote Christianity, they would be allowed to request that the individual be a practicing Christian and can therefore ask about this at interview.
Questions following the recruitment process
Once the role has been offered and accepted, the employer is allowed to ask any questions relating to a Protected Ground, such as undertaking health screening or making the job conditional upon passing a medical. However, those questions should only be asked to the extent that they are necessary to understand whether the person may have a lack of ability or a disability that would prevent them from performing certain aspects of the job and/or to understand if there are reasonable adjustments that could be required.
The duty to make reasonable adjustments applies during the recruitment process. It is good practice to offer adjustments to all who apply. The aim is to ensure there is a level playing field for all candidates.
More information can be found in the Employment Guide Chapter 6
Chapter 7: Guidance for managing staff
Whilst the Ordinance introduces a number of specific legal obligations on employers, the basic principles around good people management stay the same. Employers who already have in place HR policies, and genuinely respect and value their employees, will find that they may only need to slightly modify how they manage situations such as dealing with performance issues, sickness absence, redundancies or conduct issues.
Talking to staff and colleagues about their health or disability
It is important to say from the outset that nobody has to tell their employer, or a potential employer that they are disabled. However, employers should do all they reasonably can to create an environment where people feel safe and comfortable to talk about disability. By creating the right environment, employees will feel more comfortable sharing information with their manager on a voluntary basis, which will also benefit the employer. Ensuring the right support is in place from the start can avoid issues which might otherwise arise. Employees may share information about their health or disability because they:
- feel they need support;
- are struggling with an aspect of their role;
- are aware of a specific health and safety risk to them or others; or
- anticipate that difficulties may arise.
Using appropriate language
It is important to use appropriate language ensuring that offensive or negative terminology, including things some might consider as banter or jokes, is not used as it could amount to unlawful harassment. Using appropriate language is a question of respect towards others, so be sensitive in the terms that are used. Do not use words that are offensive or negative, and avoid passive, phrases or words that make someone out to be a victim.
Dealing with performance issues
This is relevant for any member of staff, regardless of whether you believe they have a disability or not. Often it is only by engaging in conversation with the individual that you are able to identify if there is an issue. It is recommended that after any conversation of this nature that an employer should keep a record of what has been discussed and agreed with the person.
The manager should talk with the person about:
- how they're currently performing
- what the employer expects
- what support might help
If the performance issues are linked with a disability, then the employer should consult with the individual about any reasonable adjustments which might assist in addressing those issues and the employer should then implement those adjustments if they are reasonable.
Carrying out a formal capability or performance procedure
Before starting any formal capability procedure, it is recommended that an employer should seek to discuss the issues with the employee on an informal basis. If they are aware that the employee has a disability, they should also consult with them about any reasonable adjustments. Every situation is different, and the process to be followed will depend on the needs of the employer as well as the employee.
Before taking any action, the employer must carry out a full and fair capability or performance procedure. This would typically include:
- discussing with the employee their ability to do the job and their performance in the role;
- if it is known that the person has a disability, reviewing whether that will affect their capability to undertake the role; consulting with the employee about the reasonable adjustments already in place, how they are working or might need to be changed, and any other adjustments that could be considered;
- reviewing evidence of the performance issues and the effectiveness of any adjustments that have been put in place.
Termination of employment due to performance issues
Circumstances may arise where an employer has to consider terminating the employment of a disabled person due to performance issues. Where the disability is the cause of the poor performance, a dismissal in these circumstances will be deemed to be because of something arising as a consequence of that person’s disability. Unless the employer is able to objectively justify the dismissal, it will be considered to be discrimination arising from disability.
In order to be in a position to objectively justify any dismissal, an employer would be expected to be able to demonstrate that its treatment was a proportionate means of achieving a legitimate aim. This means that the employer:
- following an investigation, has reasonably concluded that the person cannot do the essential functions of their job;
- has consulted with the employee to assess if reasonable adjustments could be made, and that every option has been tried to remove barriers and provide support to the employee;
- has considered whether there are any other suitable roles that could be offered to the employee;
- has checked that there are no other reasonable adjustments that could be made to their role or the way in which the work is done, e.g. distributing the work differently within a team; and
- has concluded that dismissal is the only appropriate action in the circumstances.
It is important that the employer records the detail of the above actions.
Managing attendance issues and sickness absence
Provided a fair process has been undertaken and there has been proper consideration around potential reasonable adjustments, it is not unlawful to dismiss an employee with a disability either because they are unable to regularly attend work, or they are absent from work on a long-term basis. However, dismissal should be seen as the last resort, and is not the overriding purpose of a good attendance management policy, which should focus on getting employees back to work.
Reasonable adjustments and return to work
Where it is identified an employee has, or may have, a disability and that is either leading to short-term intermittent absences or long-term sickness absence, then employers should talk to the employee about their condition. Employers are under a specific legal obligation to consult with employees about potential reasonable adjustments.
After an extended period of sickness absence, a phased return to work is a very common adjustment that allows an employee to ease back in to work in a controlled and measured manner. This must be workable for both the employee and employer, although typically this is based on a reduced number of working days and hours. Consideration could also be given to the type of duties that an employee should undertake, especially where the role has a physical element to it and the reason for the employee’s absence was a physical impairment such as a serious injury or chronic condition.
Termination of employment due to health issues
From time to time, circumstances may arise where an employer has to consider terminating the employment of a disabled person due to poor attendance or long-term sickness absence. Where the disability is the cause of the poor attendance or long-term sickness absence, a dismissal in these circumstances will be deemed to be because of something arising as a consequence of that person’s disability. The employer must be able to justify the dismissal, otherwise it will be considered to be discrimination arising from disability. To objectively justify any dismissal, an employer would be expected to be able to demonstrate that its treatment was a proportionate means of achieving a legitimate aim. This means that an employer should investigate the issues and explore the alternatives. Particularly in the case of long-term absences, it might be helpful to have obtained a medical opinion to understand the nature and prognosis of any condition. This might also be useful when an employee is returning to work.
Managing staff with caring responsibilities
The most common consideration that will affect an employee with carer status will relate to their hours of work, and the conflict with their caring responsibilities, thereby placing them at a disadvantage when compared to others. This often leads carers to make flexible working requests where they have regular caring commitments during their working hours. Even though there is currently no statutory framework around making flexible working requests in Guernsey, and many employers do not even have a policy, carers may still make a request. If an employer intends to reject any such request, it will need to be able to objectively justify that refusal.
While it would clearly amount to direct discrimination to select an employee to be made redundant because they had a Protected Ground, it is also unlawful to discriminate against an employee in the arrangements when deciding who to make redundant.
So, when undertaking a redundancy exercise, an employer must consider whether or not there is a Provision Criterion or Practice (PCP) which might indirectly discriminate against employees who have a Protected Ground, as well as whether there are any adjustments to consider for any employee who may have a disability.
As part of any fair redundancy process employers will need to consult with employees about a potential redundancy as well as exploring redeployment opportunities.
Where it is identified that an employee has, or may have, a disability and there is a potential redundancy situation, an employer is under a duty to consult with them about potential reasonable adjustments.
Adjustments to scoring
Employers should always be mindful of the duty to make reasonable adjustments when scoring a pool of employees who are at risk of redundancy using redundancy selection criteria. For example, where an employee has had disability-related absences or additional unpaid leave absences related to their carer status, selection for redundancy on the basis of a poor attendance record/score may amount to discrimination and adjustments should be made to disregard these absences.
Avoiding unlawful discrimination in dismissals
Guernsey already has legislation in place which requires employers to follow a fair procedure when dismissing someone for misconduct. Following a fair process when dismissing any employee with a Protected Ground will also help employers avoid unlawful discrimination.
It is recommended that all employers should have a disciplinary procedure to deal with misconduct issues that arise from time to time. They should be both fair and consistent in the operation of that process, to avoid unlawful discrimination.
Where it is identified an employee has or may have a disability and there is a potential disciplinary situation, then employers are under a duty to consult with employees about potential reasonable adjustments.
If the reason for a dismissal is because of something arising in consequence of a person’s disability, then the employer must be able to objectively justify the dismissal, otherwise it will be considered to be discrimination.
More information can be found in the Employment Guide Chapter 7
Chapter 8 Exceptions
There are some circumstances when it is lawful to discriminate on a Protected Ground – these are known as “exceptions”.
The Ordinance provides for 15 general exceptions – the titles of which are as follows:
- Positive action
- Act done under legislative or judicial authority
- Compliance with law of another country
- National security
- Freedom of expression
- Population Management
- Crown employment, etc
- Protection from harm
- Race: act done pursuant to States' policy
- Charities and non profit organisations
- Acts of worship
- Religious organisations
- Tribunal members
There are eight specific exceptions regarding employment – the titles of which are as follows:
- Genuine and determining occupational requirement
- Employment for the purposes of an organised religion
- Senior leadership positions: schools with a religious ethos
- Safeguarding (employment)
- Employees and family situations
- Employment of people with a particular disability
- No requirement to employ person who cannot fulfil essential functions of post
More information can be found in the Employment Guide Chapter 8
Chapter 9: Preparing for the legislation
There is no single definitive check list that every single employer must complete before the Ordinance comes into force, as it will vary depending on the size or complexity of the business. There are, however, a number of points that are going to be common to all employers.
Equal opportunities policy
An equal opportunities policy is a document which an employer can use to set out its commitment to tackle discrimination and promote equality and diversity in areas such as recruitment, training, management and pay. The Ordinance does not require that you have an equal opportunities policy, or if you do have one, what that policy should contain, but it is highly recommended.
An equal opportunities policy should apply to every aspect of the employment relationship right from the recruitment process, how to reward staff through pay and benefits, the management of disciplinaries and grievances, and ultimately to the end of their contract.
It might include:
- Statements outlining an employer’s commitment to equality;
- Identification of the types of discrimination and the Protected Grounds covered by the policy;
- A policy may also cover other areas of equality that are not currently Protected Grounds under the Prevention of Discrimination Ordinance, such as sex, age, gender reassignment, and pregnancy and maternity;
- Statements outlining the type of work environment and culture you are aiming to create, including what is not acceptable behaviour in the workplace;
- Information about how policy will be put into action, including how employees can raise concerns through grievances and how breaches of the policy will be dealt with through disciplinary action; and
- Who is responsible for the policy and how you will monitor and review it.
For an example of a Policy see Appendix I
Equality training is a key part of any good equal opportunities policy, because if staff understand what the Ordinance means for them as individuals or as managers, then an employer is more likely to comply with their legal obligations.
Whilst there is no legal requirement on employers to undertake equality training, it can be an important part of an employer being able to demonstrate that, in the event a claim is brought, they are preventing discrimination, harassment and victimisation.
As part of their equal opportunities policy, some employers monitor and report on matters such as recruitment, promotion, training, pay, grievances and disciplinary action by reference to the Protected Grounds of their employees. There is no legal requirement on employers to undertake diversity monitoring, nevertheless, doing so can help to assess whether they are:
- recruiting employees who are disadvantaged or under-represented;
- promoting people fairly whatever their Protected Grounds;
- checking that pay is comparable for employees in similar or equivalent jobs; and
- making progress towards the aims set out in their equal opportunities policy.
Reviewing policies and procedures
An important aspect of preparing for the introduction of the Ordinance will be a review of the organisation’s policies and procedures to consider what (if any) changes might be required.
What will be expected of each employer will vary according to their size and resources, so a large organisation with a dedicated HR team that already has extensive policies and procedures to review, may need to do more than a small employer who might only employ a handful of staff.
Every employer should spend time thinking about the lifecycle of an employee with different Protected Grounds to understand whether their policies might have a greater impact on those individuals than others. This does not mean that the policy or procedure is necessarily discriminatory, but in the case of indirect discrimination, it would need to be objectively justified.
Where an employee has a disability, an employer also needs to consider potential reasonable adjustments. Employers must also consult with the individual to assess what adjustment might be appropriate and reasonable to provide. For examples of common reasonable adjustments see Section 9.5. (Follow the link at bottom of this section.)
An Accessibility Audit is an assessment of a building, an environment or a service against best-practice standards to benchmark its accessibility for disabled people. The audit can be used to assess access to premises, ease of navigating around the building, the environment and the facilities available. An accessibility action plan can then be developed stating how improvements can be made to benefit everyone.
More information can be found in the Employment Guide Chapter 9
For an example of an accessibility audit see Appendix II
Chapter 10: The complaints process
Wherever possible, it is good practice to seek to resolve any potential complaints as they arise and before they become major problems through an employee raising a grievance. Grievances can be raised either on a formal or informal basis and can provide an open and fair way for complainants to make their concerns known, and for their issues to be resolved quickly, without having to bring legal proceedings.
When parties are unable to resolve the issues between themselves through the grievance process, early resolution of any complaint is encouraged through the Employment and Equal Opportunities Service (EEOS). Before anyone makes a complaint to the Employment & Discrimination Tribunal, they are required to first notify the EEOS of their intended complaint.
The EEOS will ask both the individual who wishes to make the complaint and the other party if they wish to engage in pre-complaint conciliation. If they do, the EEOS will then facilitate the conciliation to see if it is possible to reach a settlement.
If pre compliant conciliation is unsuccessful, an individual can then decide if they wish to proceed with a formal claim. The appropriate form should be competed and submitted to the Secretary to the Tribunal. Responses by employers are also submitted using the appropriate form. The forms will be available here or from the Tribunal upon request from 1st October 2023.
The EEOS will again facilitate conciliation to try to settle the matter. If the complaint is still not settled, then the claim may proceed to a Tribunal hearing.
There are strict time limits for bringing claims. The complaint should be raised within a period of three months, beginning on the day when the act complained of was done. However, the period between the person notifying EEOS of the intended complaint, in order to initiate pre-complaint conciliation, and the date on which they receive a certificate at the end of that conciliation, will not count towards the time limit for bringing a claim before the Tribunal.
Liability of employers and employees
Claims for discrimination can often be brought against both the employer (who is deemed to be liable for the acts of their employees carried out in the course of their employment), as well as the individuals themselves who commit the act.
An employer will still be liable for the acts of their employees, even if they were done without their knowledge or approval, unless the employer can demonstrate that they took all such steps as were reasonably practicable to prevent the employee from doing that act. As a minimum this would require employers to:
- have an equal opportunities policy;
- provided equality training to staff;
- sought to address issues when they became aware of them.
What will be the outcome of a complaint?
Where the Tribunal upholds a complaint of discrimination, it can either make an award of compensation, a non-financial award or both.
A non-financial award means an order that the employer take, within a specified period, such steps that the Tribunal is satisfied are:
- will not impose a disproportionate burden on the employer,
- relates to the discriminatory act, and
will reduce the impact of that discrimination on the employee.
An example might be to order other employees to undertake equality training.
The basic compensation for claims of discrimination relating to employment (apart from claims of equal pay) is that a person is entitled to an award of:
Up to six months’ pay, or 26 weeks’ pay if paid weekly; and
An amount payable for injury to feelings up to £10,000.
Injury to feelings is a financial award to compensate for the effects that the discriminatory act has had on the individual and this will take into account factors such as:
- the degree of hurt, distress or upset caused;
- the seriousness of the treatment;
- whether the discrimination was a one-off incident or a course of conduct.
Joined complaints may be considered by the Tribunal where a person makes more than one complaint against the same employer, or against a number of connected persons, and the circumstances of the complaint are inter-related. The Tribunal can also join claims brought by the employee for unfair dismissal and sex discrimination to a complaint under the Prevention of Discrimination Ordinance.
Where complaints are joined, the maximum compensation available in employment cases is:
- Up to nine months’ pay or 39 weeks’ pay if paid weekly; and
- An amount payable for injury to feelings up to £10,000.
- Although a single award for victimisation may be made over and above this limit.
Compensation in equal pay cases
Where an employee brings a claim for equal pay, then this is calculated on a different basis, and is not subject to the limits set out above. The employee is entitled to an award of arrears of pay, based on the difference between the pay they actually received compared to the pay they should had received up to a maximum period of six years. This can only run from the point the Ordinance came into force on 1 October 2023.
More information can be found in the Employment Guide Chapter 10