This chapter will cover the following topics:
- What is disability?
- What is race?
- What is carer status?
- What is sexual orientation?
- What is religion or belief?
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 which are:
- Carer status;
- Sexual orientation; and
- Religion or belief
See part I of the Ordinance
This chapter of the guide will explain the circumstances when someone is deemed to have a Protected Ground and is covered by the Ordinance.
Discrimination on other grounds
In addition to the five Protected Grounds above, it is already unlawful in Guernsey to discriminate in relation to employment on the grounds of sex, gender reassignment, marital status, pregnancy or maternity under The Sex Discrimination (Employment) (Guernsey) Ordinance, 2005 (Sex Discrimination Ordinance). See Legislation page Number 5.
Whilst many of the concepts under the Ordinance and the Sex Discrimination Ordinance are very similar, this guidance is solely focussed on the five new Protected Grounds and how they are dealt with in employment situations so will not cover discrimination under the Sex Discrimination Ordinance.
It is intended that a second phase of the discrimination legislation changes will be brought in at some point from 2025 onwards and that this is likely to expand the current protection to include sex, gender reassignment, marital status, pregnancy and maternity as Protected Grounds under the Ordinance and eventually repeal the existing Sex Discrimination Ordinance. At the same time this takes place, it is anticipated that age will also be added as an additional Protected Ground. Until this takes place, it will be possible to bring a combined claim under both the Ordinance and Sex Discrimination Ordinance, for example where someone has suffered both sex and race discrimination.
A comparison between Guernsey, Jersey and the UK
For employers who either have a presence in other jurisdictions, or who may have worked in other countries, it is important to understand that there are legal differences in Guernsey and elsewhere. Set out below is a table which shows how the Protected Grounds (which are sometimes referred to as protected characteristics elsewhere) will compare with the UK and Jersey:
Legal protection from discrimination for different grounds/characteristics in different jurisdictions
E&SP: Currently in force for employment and service provision
E: Currently in force for employment only
** Not yet in force, but planned
Protected Ground/ Characteristic
Religion or Belief
E: Protection for sex, gender reassignment, pregnancy or maternity and marital status is currently given by the Sex Discrimination Ordinance for employment matters only. Protection from discrimination on these grounds in a non-employment context will be considered in phase 2 which will not come in until at least 2025.
** In Guernsey age will not become a Protected Ground until phase 2.
2.1 Protected Grounds - disability
Disability is one of the Protected Grounds under the Ordinance.
A person has a disability if the person has one or more long term impairments.
A long-term impairment is 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.
For these purposes an impairment means:
- the total or partial absence of one or more of a person's bodily or mental functions, including the absence of a part of a person's body;
- the presence in the body of organisms or entities causing, or likely to cause, chronic disease or illness;
- the malfunction, malformation or disfigurement of a part of a person's body;
- a condition or malfunction which results in a person learning differently from a person without the condition or malfunction; or
- a condition, illness or disease which affects a person's thought processes, perception of reality, social interactions, emotions or judgement or which results in disturbed behaviour.
See section 1 of the Ordinance
A person has a disability if they have one or more long term impairments. The definition of disability has deliberately been drafted on a wide basis, in order to capture most long-term impairments that individuals may have. In particular, the definition is wider than the respective positions in the UK and Jersey. In the UK it is necessary to prove the disability has a substantial and long-term negative effect on a person’s ability to do normal daily activities and the disability has lasted or is expected to last for twelve months or more. In Jersey there is a broad interpretation of what an impairment is and there is an additional requirement that the impairment could have an adverse effect on the individual’s ability to participate or engage in any area of activity that is protected under the Discrimination (Jersey) Law 2013. The time-period in Jersey for an impairment to be considered long-term is the same as in Guernsey, at 6 months.
Where it is identified that an employee has a disability, then it will trigger certain obligations including the duty to make reasonable adjustments. For further details on this duty follow the link to Chapter 3 reasonable adjustments.
The first question that needs to be considered in determining whether a person has a disability is do they have an impairment? An impairment can be physical, mental, intellectual or sensory. It can include illnesses or diseases, or disfigurements and is intended to capture almost any condition, illness or disease as can be seen from the definition. Whether a person has an impairment will always come down to their individual circumstances, but this is not intended to be a high threshold and in particular, there is no requirement for the impairment to have a particular level of adverse effect on the individual or their day-to-day activities.
A new employee in a bank is struggling with their induction which is a lengthy written document, and they raise a complaint commenting that they prefer to learn complicated concepts through visual means rather than reading about them.
Whether or not the employee in this example has a disability will depend on if they have an underlying condition such as dyslexia. If they do, then this would constitute a disability – even if it has never been diagnosed. However, if this is purely a preference of learning style, then even though they may learn differently from other people this will not constitute a disability.
In order to qualify as a disability, any impairment must be “long term”. This means it must last, or be expected to last for not less than six months’ or until the end of the person’s life.
When considering if an impairment has lasted, or is expected to last for six months then you should include any period of remission where the impairment has the potential to recur, or any period where the person is receiving medical treatment which controls the symptoms of the impairment to any extent. This is intended to cover conditions such as multiple sclerosis or cancer which can go into a period of remission.
If there is any doubt as to whether an impairment is a long-term impairment, medical evidence may be sought by the person with the impairment from a registered health professional, special educational needs coordinator or occupational health practitioner, as appropriate, as to the expected duration of the impairment.
With respect to reasonable adjustments (see Chapter 3) if there is any doubt about whether the disabled person is placed at a substantial disadvantage, an employer may seek medical evidence and consult with others about how any disadvantage may be removed or reduced.
Whilst on holiday, an employee suffers a fracture of their arm. Such an injury would likely constitute an impairment, as it constitutes a malfunction of part of their body.
If the break was only a minor fracture and it was expected to heal within six months’ then it would not be classed as “long term”, so would not constitute a disability. However, if the injury was a serious break, that would be expected to take more than six months to be treated, then it would be deemed to be long term and so would constitute a disability.
Anxiety, depression, stress or other mental health conditions
Where an individual has anxiety, depression, stress or other mental health conditions on a long-term basis (i.e. has lasted or is expected to last for at least six months), then this will likely amount to a disability. Whilst it is not necessary for someone to receive a specific formal diagnosis in order to be considered to have an impairment, an employee cannot simply self-diagnose that they might have a mental health condition.
In the case of anxiety, depression, stress or other mental health conditions, it can be difficult to anticipate the likely duration of the impairment and, as noted above the Ordinance specifically anticipates medical evidence can be used for these purposes. Furthermore, medical evidence can also be useful in considering the legal duty to make reasonable adjustments, including matters such as a phased return to work.
Even if someone has an impairment which has not lasted, and is not expected to last, six months and as such does not yet classify as a long-term impairment, a good employer should always consider making adjustments. For example, when an employee has anxiety or stress, the employer may have a duty of care to their staff and where possible it is better to keep someone in work, than off sick. In addition, where an employer fails to address issues such as stress in the workplace, a condition may become a long-term impairment and therefore a disability due to the passage of time.
2.2 Protected Grounds – race
Race is one of the Protected Grounds under the Ordinance.
Race can mean any of the following
- ethnic origins,
- national origins,
- descent, which includes caste.
See section 2 of the Ordinance
In a lot of instances whether someone has been discriminated on the grounds of their "race" will be obvious. For example, it will be unlawful to treat someone less favourably because of their "skin colour" or "nationality". This also extends to treating someone less favourably on the grounds of their "national origins" or “descent” which includes being of Bailiwick of Guernsey origin.
The term “caste” is not defined in the Ordinance. In general terms it relates to a hierarchical system within which membership is determined by birth.
The caste system is sanctioned by Hinduism but is also found in other societies around the world as well. The term "ethnic origin" is much broader, and covers identifiable groups who might share the same language, religion, literature, or geographical origin etc. such as Jews, Romany Gypsies and Sikhs.
Two or more distinct racial groupings
In addition, it is possible that a racial group can comprise of two or more distinct groupings, such as Russian Jews, Gypsies and Irish Travelers and British Sikhs.
An Irish employee claimed that their manager ridiculed their "funny accent", referring to them as an "Irish gipsy" and made frequent derogatory references to them in relation to a reality TV show.
This would be an example of harassment on the grounds of race, using two distinct racial groupings.
2.3 Protected Grounds – carer status
Carer status is one of the Protected Grounds under the Ordinance.
A person (A) has the Protected Ground of carer status if A provides care or support on a continuing, regular or frequent basis for a person with the Protected Ground of disability (B), and
- B's disability is of a nature which requires continuing, regular or frequent care or support of the kind that A is providing; and
- A lives with B or is a close relative of B.
For these purposes a close relative means any of the following relationships:
- Parent or child of a spouse or partner
See section 3 and section 72 of the Ordinance
Carer status refers to someone who has continuing, regular or frequent responsibility for ongoing care and support of another person. The carer must fall within the definition above of a close relative, or otherwise live with the person who receives the care.
In order to qualify for carer status, the person receiving the care or support must be deemed to have a disability that is covered by the Ordinance, i.e. they must have a long-term impairment. This is when an impairment lasts for at least 6 months or until the end of a person’s life.
Continuing, regular or frequent care or support
The disability must be of a nature which requires “continuing, regular or frequent care or support”, but it could cover things such as annual hospital visits for check-ups, or a series of continuing issues that may occasionally arise.
There is no requirement that the care or support must be permanent. Attendance at a one-off hospital appointment would be unlikely to be considered to be “continuing, regular or frequent care or support” but if the visit was part of a package of support for different appointments relating to the same condition, it may.
An employee submits a flexible working request to reduce their full-time hours, in order to provide care and support for their elderly mother who has dementia and requires increased help during the day, especially at lunch times. The employee in this case would be classified as having carer status as they have a close relative who is disabled and they provide care and support on a regular basis.
Whilst there is no duty to make reasonable adjustments in respect of carers, if the employer intended to refuse the request on the basis that the role could not be part-time working, they would have to be able to objectively justify the provision, criterion or practice to work full-time otherwise the decision could amount to indirect discrimination.
Whether or not such a policy would be objectively justified would depend upon the wider circumstances taking into account matters such as customer demand, the ability of other existing staff to cover, or the ability to recruit other staff.
There is an exception for where the care is support that is provided by a person in a paid, professional capacity. This might be under a contract of employment or in the course of self-employment.
A nurse who is employed as a care worker supporting vulnerable adults and through that role provides care for a close relative, would not be considered as having carer status.
However, if the support given is unpaid and not part of a professional role/job then this status would be protected.
2.4 Protected Grounds – sexual orientation
Sexual orientation is one of the Protected Grounds under the Ordinance.
Sexual orientation can mean a person’s sexual orientation towards:
- persons of the same sex
- persons of a different sex
- persons of both the same sex and persons of a different sex
See section 4 of the Ordinance
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. This would be unlawful. The Ordinance would also protect someone who is treated less favourably because they are connected to someone who has a particular sexual orientation. This is known as discrimination by association. The Ordinance would also protect someone who it is believed (imputed) to have a particular sexual orientation even if that is not the case.
Two employees get into an argument over a work issue. During the course of that argument, one of the employee’s uses a derogatory term relating to what he believes the other person’s sexual orientation to be.
The use of derogatory terminology relating to a person’s sexual orientation in these circumstances is likely to amount to harassment, even if the employee does not have that particular orientation.
It is important to remember that a person’s sexual orientation is different from their sex, gender identity (i.e. how an individual identifies) and/or whether they have undergone gender reassignment.
2.5 Protected Grounds – religion or belief
Religion or belief is one of the Protected Grounds under the Ordinance.
Religion means any religion and includes any religious background or outlook, and a reference to religion also includes a reference to a lack of religion.
Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
See section 5 of the Ordinance
Religion can cover any religion, such as Christianity, Judaism, Islam or Buddhism, or a smaller religion like Rastafarianism, as long as it has a clear structure and belief system. The Ordinance will also protect against those individuals who may be discriminated against because they lack either a specific or any religion, as well as manifestations of their faith (i.e. how they believe a religion should be practiced by way of worship, observance, teaching and practice).
An airline operates a strict uniform policy that prevents the wearing of visible jewellery, and so rejects a request from a Christian employee to allow them to wear a plain silver cross as an expression of their faith.
Such a policy would amount to indirect discrimination, and it is unlikely the airline would be able to objectively justify it.
The Ordinance also extends to philosophical beliefs. The Ordinance does not define what this term means, but based on decisions in the UK which the Guernsey tribunals are likely to follow in order to be protected any belief must:
- be genuinely held;
- not just be an opinion or view point based on the present state of information;
- be weighty and substantial;
- attain a certain level of cogency, seriousness, cohesion and importance; and
- be “worthy of respect in a democratic society”.
A person who considers themselves an ethical vegan and who does not eat or wear animal products or use banknotes thought to be produced with animal products is capable of having a philosophical belief within the meaning of the Ordinance.
So if a colleague deliberately left a piece of raw meat on their desk as a prank, then if this caused offence, then this would likely constitute harassment related to a Protected Ground.