Note: This document provides summary guidance only and must not be treated as a complete and authoritative statement of the law.
Introduction
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 services and duties when providing services. This includes duties and responsibilities for those who provide goods, services and facilities to the public, education providers, accommodation providers and clubs and associations. A more detailed guidance document is available here.
More information can be found by following the link at the end of each chapter of this document to the relevant chapter of the main guidance document.
There is a separate guidance document in respect of discrimination in employment see Employment guide- summary.
Chapter 1: Discrimination and other prohibited conduct
Discrimination is when a person is treated unfavourably. It is important to understand that discrimination arises in lots of different contexts and can often be unintentional. However, because of the impact of discrimination on the individual, intent is generally considered irrelevant when determining whether or not discrimination has taken place.
When is discrimination unlawful?
When the Ordinance comes into force on 1 October 2023, it will be unlawful for service providers to discriminate against users of their services because of a Protected Ground. There are four types of discrimination and other types of prohibited conduct.
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. Direct discrimination cannot be objectively justified, but there are some exceptions under the Ordinance which allow discriminatory treatment that would otherwise be unlawful.
|
Example It would be direct discrimination on the grounds of religion or belief for a sports club or association to refuse to admit a person as a member because they are a Muslim. But it would be lawful (due to an exception) for a Catholic club or association (as a religious organisation) to require its members 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 disadvantage for an individual as long as there is a good reason for it – this is known as objective justification. In order to justify a policy, a service provider 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). However, a legitimate aim should not solely be about cost, but it could be about cost and something else. An organisation cannot simply argue that to discriminate is cheaper than avoiding discrimination.
|
Example A woodwork evening class has a policy of banning necklaces as there is machinery used during the class and there is a risk of injury if wearing jewellery. This might disadvantage an attendee who wears a necklace to show their faith. But, if the course provider can show there is a good health and safety reason for the policy and there is no other way to achieve the health and safety objective, then it would still be lawful. |
Discrimination by association is when a person is treated less favourably because they are linked or associated with another person who has a Protected Ground.
|
Example It would be discrimination by association if an accommodation provider (such as a landlord) chose not to rent a property to a parent because they had a disabled child with Tourette’s syndrome as they were concerned that this might annoy the other residents. |
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 work for medical appointments, or side effects of drugs that alter behaviour) and which cannot be objectively justified. If the organisation could show that they did not know the person was disabled, and could not reasonably have been expected to know that they were disabled, then the organisation would not be liable.
|
Example A student with a disability is not allowed to go on a school trip because of the medical equipment that they would need to take with them. This would constitute unfavourable treatment because of something arising from their disability. It will therefore be necessary for the education provider to demonstrate its treatment was objectively justified. |
Other prohibited conduct
Harassment, sexual harassment and victimisation are 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 does not matter if the conduct was intentional or whether the victim did or did not make it known that the conduct was unwanted.
There is an exception 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 would 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 to make a complaint, or they have helped someone else make a complaint.
In addition, it is unlawful to publish an advertisement which indicates an intention to commit a prohibited act and to cause, instruct or induce another person to undertake a prohibited act.
For more information see Chapter 1 Service providers guide.
Chapter 2: Protected Grounds
The Ordinance makes it unlawful to discriminate against a person 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. 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.
Race can mean a person’s colour, nationality, ethnic origins, national origins or decent, 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 a person 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 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, religious outlook or a lack of religion. Belief means any religious or philosophical belief and includes a lack of belief.
For more information see Chapter 2 Service providers guide.
Chapter 3: Duty to make reasonable adjustments
Achieving equality for disabled people may mean changing the way that services are provided to create a level playing field for all. This could be by amending policies or procedures, removing barriers or providing extra equipment or support for a service user or customer.
The Ordinance introduces a duty to take steps to remove, reduce or prevent the barriers that a disabled person may face when accessing services, where it is reasonable to do so.
This is known as the duty to make reasonable adjustments and where a service provider fails to comply with this duty, this will be unlawful under the Ordinance.
What is a reasonable adjustment?
Where usually discrimination legislation requires that employers and service providers treat people in a similar way, in some cases it might be necessary to treat disabled people differently in order for them to have equal access and opportunity or for them to be included where they would otherwise be excluded.
The need for a reasonable adjustment arises where a disabled person is subject to a substantial disadvantage which is:
- caused by a provision, criterion or practice;
- 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 that applies to everyone.
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. Where it is identified that a physical feature causes a substantial disadvantage then an organisation should consider what it can do to avoid that disadvantage, which may mean removing, altering or a means of avoiding the physical feature in question.
Auxiliary aid means equipment or a service that is used by a disabled person to provide assistance which compensates for, or removes, the disadvantage connected with their disability. It might be specific equipment, such as a light box for a person with seasonal affective disorder, or additional resources to support a student who has autism.
What is reasonable?
There are various factors that determine whether a particular adjustment is considered reasonable. This is an objective decision and not simply a matter of what the organisation or the disabled person may personally think is reasonable. These factors include:
- effectiveness of the adjustment to reduce or remove the disadvantage that the disabled person would otherwise experience;
- the practicality and/or effect on the organisation;
- 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, when applicable.
Consultation
Before an adjustment is made, the service provider has a duty to consult the disabled person to find out what adjustment would be appropriate. 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 or third sector organisations, to gain advice regarding what adjustment(s) would be appropriate (this would need to be with the individual’s permission as organisations 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 organisation, but it does not have to provide the adjustment if it would be a disproportionate burden to do so. The cost cannot be passed on to the disabled person (with the exception of adjustments requested by tenants in very limited circumstances).
What is a disproportionate burden?
In determining whether an adjustment poses a disproportionate burden, the cost to the organisation, the resources of the organisation and practical considerations should be taken into account.
What happens if a reasonable adjustment is not made?
Failure to comply with the duty to make a reasonable adjustment is a form of disability discrimination. Such a failure would leave an organisation open to a complaint.
Proactive duty to make reasonable adjustments
Service providers and education providers are under an additional proactive duty to make reasonable adjustments for disabled people generally. This does not apply to clubs and associations or accommodation providers unless they are also service providers. This duty aims to ensure that reasonable adjustments that will benefit disabled service users are thought about and made proactively in order to avoid disabled people having to make individual requests. The aim is to make these services more accessible for more people.
The duty to consult does not apply to the proactive reasonable adjustment duty, although it might be useful to include disabled people when considering what adjustments to make.
Public sector accessibility action plans
In addition to the proactive duty to make reasonable adjustments for disabled people generally that applies to service providers and education providers, there is an additional duty for public sector service providers and public sector schools and education providers to develop accessibility action plans. An accessibility action plan must set out what steps will be taken to improve access to their service for disabled people. This will not come into effect before 1 October 2028 but it would be wise for the public sector to work towards their development prior to that date.
For more information see Chapter 3.7 Service providers guide.
When do the reasonable adjustment duties come into force?
The duty on employers (see separate guidance), service providers, accommodation providers and clubs and associations, to make reasonable adjustments for a disabled person will come into force on 1 October 2023 – although if this relates to a physical feature of a building, this will not come into force until 1 October 2028 at the earliest.
The proactive duty on service providers to make reasonable adjustments will come into force on 1 October 2023 – although if this relates to a physical feature of a building, this will not come into force until 1 October 2028 at the earliest.
Both the standard reasonable adjustment duty and the proactive duty, insofar as they relate to the provision of education, will not come into force until 1 September 2025 at the earliest – although if this relates to a physical feature of a building, this will not come into force until 1 October 2028 at the earliest.
For more information see implementation table.
Chapter 4: Goods, services and facilities
A service provider is anyone (that might be an individual or an organisation) who provides goods, services or facilities to the public, whether or not they are paid for doing so.
This includes, for example, shops that sell goods, businesses that provide services or facilities and organisations that hire out venues. It also includes charities and other not for profit organisations that provide services to members of the public, even if they do not charge for these services.
Discrimination and prohibited conduct
A service provider must not discriminate against a person on a Protected Ground by:
- refusing to provide goods, services or facilities to the person;
- providing these to a person on different terms or in a different manner; or
- ceasing to provide the goods, services or facilities to the person, including by requiring the person to leave the premises.
In addition, service providers must not victimise or harass a person on a Protected Ground. Service providers are subject to the reasonable adjustment duty and the proactive reasonable adjustment duty. More information on those duties is included later in this section.
Service providers are not required to take a step which would fundamentally alter the nature of the service or the nature of the service provider’s trade or profession.
Exceptions
There are a number of general exceptions for service providers where it is not necessarily unlawful to discriminate against a person on a Protected Ground. There are also specific exceptions for certain types of service providers, which are covered in the next sections. More information see Chapter 8 Service providers guide.
Service providers acting in other capacities
Whilst an organisation may fall under the definition of a service provider, it is important to remember that there are separate sections under the Ordinance which deal with schools and education providers, clubs and associations and accommodation providers which may also apply when the organisation is acting in a different capacity. In addition, if a service provider has employees, it will need to consider its responsibilities as an employer.
Understanding the needs of customers
All service providers need to think about proactive adjustments and take reasonable steps to overcome any barriers that may affect people with different kinds of disability as they access their services. Changes and improvements will also benefit others who may, or may not, have a different Protected Ground.
|
Example: A small shop has narrow aisles. The physical features will place some disabled people at a disadvantage, for example those with mobility impairments. The manager of the shop (the service provider) will need to consider what adjustments it would be reasonable for it to make to the layout of the shop to improve accessibility. This will also benefit parents with young children who are in prams/buggies and carers who are accompanying an older person. |
Whilst there is no single exhaustive list of issues that a service provider must consider in respect of the proactive reasonable adjustment duty, the following may be a useful starting point:
- Plan in advance for the needs of any known disabled service users;
- Conduct an accessibility audit on publicly accessible premises;
- Ask disabled customers for their views on how to make services more accessible.
- Consult local disability groups for their advice;
- Promote any improvements that have been made to improve accessibility and provide reasonable adjustments;
- Ensure any assistive equipment (such as a hearing loop) is properly maintained and is checked regularly;
- Train employees to respond to requests for reasonable adjustments; and
- Encourage employees/volunteers to develop additional skills for disabled people (e.g. undertake disability awareness training).
Positive action
Positive action is steps which aim to promote greater equality of opportunity, or a greater degree of equality, on any of the Protected Grounds. Positive action is not required under the Ordinance, but it is lawful. Service providers may wish to consider where steps could be taken to address an inequality experienced by a particular group – for example by:
- providing additional or bespoke services;
- providing separate facilities;
- giving accelerated access to services; or
- targeting resources, induction or training opportunities to benefit a particular disadvantaged group.
Reasonable adjustments
Service providers are under a duty to make reasonable adjustments for a disabled person when providing goods, services or facilities to remove barriers for disabled service users. Organisations should consider, for example:
- reviewing any provision, criterion or practice, such as the way in which goods, services or facilities are delivered or the terms and conditions under which they are provided;
- reviewing the design or construction of any premises including access, fixtures and fittings, and considering what improvements could be made to accessibility; and
- providing equipment and support services which may support a disabled service user to access the service.
|
Examples of reasonable adjustments include:
|
When do the reasonable adjustment duties for service providers come into force?
- The duty to make reasonable adjustments for a disabled person will come into force on 1 October 2023 – although if this relates to a physical feature of a building, this will not come into force until 1 October 2028 at the earliest.
- The proactive duty on service providers to make reasonable adjustments will come into force on 1 October 2023 – although if this relates to a physical feature of a building, this will not come into force until 1 October 2028 at the earliest.
For more information see Chapter 4 Service providers guide.
Chapter 5: Education
Schools and education providers must not discriminate against students or prospective students on a Protected Ground in relation to their education.
A school is an institution which provides primary or secondary education (or both) and includes:
- a school maintained by the States;
- an independent school; or
- a school in respect of which grants are made by the States to the proprietor of the school.
An education provider means an education institution in Guernsey, or an organisation which develops or accredits curricula or training courses for use by a school or education institution in Guernsey.
An education institution means an institution in Guernsey at which education is provided for five or more students of any age, not being a school, and this includes pre-schools and day nurseries.
Discrimination and other prohibited conduct
A school or education provider must not discriminate against a person on a Protected Ground:
- in the arrangements* it makes for deciding who is offered admission as a student;
- as to the terms on which it offers to admit a person as a student;
- by not admitting a person as a student;
- in how education is provided to a student;
- by denying a student access, or limiting a student’s access, to any benefit, facility or services;
- by permanently excluding a student; or
- by treating a student unfavourably in any other way.
* Arrangements for admissions would include the following considerations:
- Admissions policies
- Drawing up of admissions criteria
- Application of admissions criteria
- Information about the school, including marketing material
- Open events and school visits
- Application forms
- Decision-making processes
- Interviews
- Admission tests
In addition, schools and education providers must not victimise or harass a student on a Protected Ground and, from no earlier than 1 September 2025, will be subject to the duty to make reasonable adjustments for a disabled person and proactive reasonable adjustments for disabled people generally (except where these relate to the physical features of a building which will come into force no earlier than 1 October 2028).
Schools and education providers are not required to take a step which would fundamentally alter the nature of the educational service provided.
Exceptions
There are a number of general exceptions where it is not necessarily unlawful to discriminate against a person on a Protected Ground. There are also some specific exceptions for schools and education providers. More information see Chapter 8 Service providers guide.
Schools and education providers acting in other capacities
Whilst an organisation may fall under the definition of a school or education provider, they may also need to consider their responsibilities as an employer, service provider, accommodation provider, or club or association, if acting in one or more of these other capacities.
|
Example When a school provides education in relation to students, it is subject to duties as an education provider (from no earlier than 1 September 2025). When a school hires out its facilities at the weekend to members of the public, it is subject to duties as a service provider (from 1 October 2023). When a school offers staff accommodation which it provides to them as part of their job, it is subject to duties as an accommodation provider (from 1 October 2023, although certain specific reasonable adjustment duties for landlords would not apply until 1 October 2028 – see accommodation section for further guidance). When a school (or the States of Guernsey) employs staff, it is subject to duties as an employer (from 1 October 2023). |
Reasonable adjustments
The duty on schools and education providers to make reasonable adjustments for disabled students, where a student is placed at a substantial disadvantage, will not come into force before 1 September 2025 (or not before 1 October 2028 where the adjustment relates to a physical feature of premises).
Schools and education providers should consider, for example:
- reviewing any provision, criterion or practice – the way in which education is delivered or accessed;
- considering the design or construction of the premises, including access, fixtures and fittings, and considering what improvements could be made to accessibility; and
- providing equipment and support services which may assist a disabled student to access education.
|
Examples of reasonable adjustments include: • allowing the use of assistive technology for students who find handwriting documents challenging; |
Understanding the needs of students
In addition to the duty on schools and education providers to make reasonable adjustments for a disabled student, they will also have, from no earlier than 1 September 2025, a proactive duty to make reasonable adjustments for disabled people generally. This involves anticipating disabled students’ needs and barriers and making adjustments in advance of being asked. This proactive duty does not mean that the needs of every student need to be anticipated, but that adjustments that will benefit students with different needs should be considered.
Proactive reasonable adjustment duty - tips for schools and education providers:
|
Positive action
Positive action is steps which aim to ensure equality, or a greater degree of equality, on any of the Protected Grounds. Positive action is not required under the Ordinance, but it is lawful. This means that education providers are allowed to take action to tackle a particular disadvantage and that it is not unlawful to treat disabled students (or applicants) more favourably than non-disabled students (or applicants) if this is to address a disadvantage which the disabled student is experiencing.
Positive action can include:
- providing additional or bespoke services;
- providing separate facilities;
- giving accelerated access to services; and
- targeting resources or induction or training opportunities to benefit a particular disadvantaged group.
For more information see Chapter 5 Service providers guide.
Chapter 6: Clubs and associations
Clubs and associations with at least 25 members and with rules regarding selection must not discriminate on a Protected Ground in relation to membership or against their members.
Discrimination and other prohibited conduct
A club or association must not discriminate:
- when deciding who to offer membership to;
- as to the terms on which it offers a person membership;
- by not offering a person membership;
- in the terms of membership afforded to the member;
- by refusing a member’s application for a particular class or type of membership;
- by denying a member access, or limiting a member’s access, to any benefit, facility or service provided by the club or association;
- by depriving a member of membership; or
- by treating a member unfavourably in any other way.
In addition, a club or association must not victimise or harass on a Protected Ground any of its members or people who have applied for membership. They are also subject to the duty to provide reasonable adjustments for their members and applicants.
Clubs and associations are not required to take a step which would fundamentally alter the nature of the club or association.
Exceptions
There are a number of general exceptions where it is not necessarily unlawful to discriminate against a person on a Protected Ground.
There are also some specific exceptions relating to clubs and associations. For example, clubs and associations are allowed to restrict membership to persons who share a Protected Ground( except skin colour in relation to race).
|
Example: It would be lawful to have a Latvian Association or a club for people with a particular disability but not to have a white person's club. |
Clubs and associations acting in other capacities
Whilst an organisation may fall under the definition of a club or association, it may also need to consider its responsibilities as an employer, service provider, school or education provider, or accommodation provider, if acting in one or more of these other capacities.
Even if a club or association has less than 25 members so does not have responsibilities under the Ordinance in that capacity, it may have obligations under the Ordinance as an employer (if they employ staff), service provider (if they provide goods, services or facilities to the public), school or education provider (if they provide education) or as an accommodation provider (if they sell, let or manage premises).
Reasonable adjustments
From 1 October 2023, clubs and associations will have a duty to make reasonable adjustments for a disabled person. The duty to make adjustments to physical features will not come into force until at least 1 October 2028.
Organisations should consider, for example:
- reviewing how applications for membership need to be made, and the way in which membership, benefits, facilities or services are accessed;
- the design or construction of the premises including access, fixtures and fittings; and
- providing equipment and support services to enable members to access the club and its facilities.
|
Examples
|
When assessing the reasonableness of an adjustment which involves a cost, the resources of the club or association can be taken into consideration.
Clubs and associations do not have a proactive duty to make reasonable adjustments for disabled people generally, but it may be helpful for them to consider whether there are any barriers to disabled people joining the club or association or fully participating in its activities, and what steps could be taken to address those barriers.
For more information see Chapter 6 Service providers guide.
Chapter 7: Accommodation
An accommodation provider means a person who has the right to sell or let premises, a person whose permission is required to sell or let premises, and a person who manages occupied premises. It includes anyone who has the right to sell, rent or grant permission to occupy a commercial or residential property.
It does not include a person who provides premises which fall within a visitor economy use class within the meaning of Schedule 1 to the Land Planning and Development (Use Classes) Ordinance, 2017 (i.e. a provider of serviced or non-serviced visitor accommodation). They are classified as service providers under the Ordinance.
Discrimination and other prohibited conduct.
Accommodation providers must not discriminate on a Protected Ground when providing accommodation. In addition, an accommodation provider must not victimise or harass a person on a Protected Ground when providing accommodation and is subject to the reasonable adjustment duty where a provision criterion or practice or lack of an auxiliary aid places a disabled person at a substantial disadvantage. Where the accommodation provider is acting as a landlord, the duty to make reasonable adjustments in respect of physical features does not apply - instead the Ordinance imposes three additional, separate duties which are explained later in this chapter.
|
Example A landlord serves notice to evict a tenant after the same sex partner of the tenant moved into the shared flat. This is direct discrimination because of sexual orientation. |
Accommodation providers are not required to take a step which would fundamentally alter the nature of the accommodation service provided, or the nature of the accommodation provider’s trade or profession.
Exceptions
There are a number of general exceptions where it is not necessarily unlawful to discriminate against a person on a Protected Ground. There are also some specific exceptions relating to accommodation providers. More information see Chapter 8 Service providers guide.
Accommodation providers acting in other capacities
Whilst an organisation may fall under the definition of an accommodation provider, they may also need to consider their responsibilities as an employer, service provider, school or education provider, or club or association, if acting in one or more of these other capacities.
Reasonable adjustments
Accommodation providers are subject to the reasonable adjustment duty where a provision, criterion or practice or lack of an auxiliary aid places a disabled person at a substantial disadvantage.
Accommodation providers should consider, for example:
- the way in which accommodation is provided and the terms and conditions upon which it is provided;
- providing equipment or services where this would constitute a reasonable adjustment, and they are not permitted to pass the related costs on to the disabled person.
Examples of reasonable adjustments include:
- providing different ways to contact the organisation: in writing, phone, text, email
- providing a hearing loop
- allocating car parking for a mobility impaired tenant
- allow a disabled tenant to be accompanied by a friend or relative to a meeting.
Where the accommodation provider is acting as a landlord, the duty to make reasonable adjustments for a disabled person in respect of physical features does not apply - instead the Ordinance imposes three additional, separate duties which are explained below. Accommodation providers do not have a proactive duty to make reasonable adjustments for disabled people generally.
Landlord duties
Landlords do not have a duty to make reasonable adjustments in respect of physical features but other duties apply instead:
- Duty to carry out minor improvements – this applies to both residential and commercial landlords;
- Duty on residential landlords to allow requests from tenants to make reasonable adjustments; and
- the duty on commercial landlords to allow requests from tenants to make reasonable adjustments.
Duty to carry out minor improvements – residential and commercial landlords
Where the tenant is a disabled person or a disabled person lives in the accommodation as their principal residence (irrespective of whether they are the tenant or leaseholder on the lease or tenancy, for example they may be a member of the tenant’s or leaseholder’s household), then the landlord has a duty to make minor improvements to the property, where the lack of that improvement places the disabled person at a substantial disadvantage.
|
For these purposes, minor improvements are:
|
For more information see Chapter 7.4 Service providers guide.
Reasonable adjustments to rented property – residential landlords
There is also a specific duty on residential landlords to allow (i.e. not unreasonably refuse) reasonable adjustments to be made by a disabled tenant where a physical feature of a property places them at a substantial disadvantage and the accommodation is their principal residence. This duty is limited to certain prescribed works.
A landlord may require the tenant to:
- pay any or all of the costs of any works undertaken;
- engage an appropriately qualified tradesperson to undertake the work;
- demonstrate that the tenant has or will have the resources to restore the property to it its original condition at the end of the tenancy; and
- restore the property to its original condition at the end of the tenancy.
For more information see Chapter 7.4 Service providers guide.
Reasonable adjustments to rented property – commercial landlords
In practice, many organisations do not own the premises in which they operate, rather they rent the building or office as tenants from a commercial landlord. The Ordinance places a specific duty on landlords to allow (i.e. not unreasonably refuse) reasonable adjustments for the benefit of employees or service users of a tenant. This is similar to the duty in respect of residential landlords (see above) but is not limited to a prescribed list of works and there is no equivalent ability on the part of the landlord to require the tenant to demonstrate they have the resources to restore the property.
For further information see Chapter 7.4 Service providers guide.
When do the reasonable adjustment duties come in for landlords?
The duty to make reasonable adjustments for a disabled person upon request in relation to a provision, criterion or practice or the lack of an auxiliary aid will come into force on 1 October 2023.
The landlord specific duties do not come into force on 1 October 2023. The duties on residential and commercial landlords to allow (not unreasonably refuse) reasonable adjustments will not come into force until 1 October 2028 at the earliest.
For more information see implementation table.
Chapter 8: Exceptions
There are some circumstances when it is lawful to discriminate on a Protected Ground – these are known as exceptions.
General exceptions
- Positive action (see Chapter 8.1)
- Act done under legislative or judicial authority
- Compliance with law of another country
- National security
- Freedom of expression (see Chapter 1.5)
- Immigration
- 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
- Animals
Goods, services or facilities
- Financial services involving an assessment of risk
- Financial services arranged by an employer and personal pension schemes
- Financial services: religious mutual organisations
- Television, radio and online broadcasting and distribution
- Information society services
- Dramatic performances
- Goods and services: religion or belief
Education
- Disability: admission to schools
- Religion or belief: admission to schools
- Curricula
- Pupils with assessed needs
Clubs and Associations
- Clubs – restricted membership
- Sport – disability and nationality
Accommodation
- Private disposals of residential premises
- Accommodation provided in a person's home
- Social housing
- Specialist accommodation
Health
- Infectious diseases
- Blood donation services
- Care within the family
- Clinical judgement
- Persons who lack capacity
- Preventative health services
For more information see Chapter 8 Service providers guide.
Chapter 9: Preparing for the legislation
There is no definitive check list that must be completed before the Ordinance comes into force but there are a number of points to consider that are common to all organisations, regardless of size or complexity. There are also certain points that are specific to service providers, schools and education providers, clubs and associations and accommodation providers, including the different dates for implementation.
Probably the single most important thing an organisation can do in preparing for the legislation is to raise awareness within its workforce (if applicable) around equality issues – particularly in the context of their business. The issues that a large financial services company might have to address in relation to their clients, will inevitably be quite different from a school in relation to their students, and again very different to a small club or association in relation to their members.
Organisations should reflect on how they operate and what barriers are put in place that affect the people they interact with and who have a particular Protected Ground. They must ask themselves: is that barrier needed or could things be done in a different way?
Equal opportunities policy
An equal opportunities policy is a document which an organisation can use to set out its commitment to tackle discrimination and promote equality and diversity. The Ordinance does not require that you have an equal opportunities policy, or if you do have one, what that policy should contain, but such a policy might form part of the organisation’s defence in some circumstances if a complaint were to be made against the organisation.
An equal opportunities policy should apply to every aspect of the relationship with service users, students, tenants, members, etc, including how grievances are managed.
It might include:
- statements outlining an organisation’s commitment to equality;
- identification of the types of discrimination and the Protected Grounds covered by the policy;
- reference to other aspects of equality that are not currently Protected Grounds under the Ordinance, such as age, sex, marital status, gender reassignment and pregnancy and maternity (N.B. discrimination in employment on the grounds of sex, marital status, gender reassignment and pregnancy and maternity is unlawful under the Sex Discrimination (Guernsey) Ordinance, 2005).
- statements outlining the type of environment and culture you are aiming to create, including unacceptable behaviour;
- information about how the policy will be put into action, including how individuals can raise concerns through grievances and how breaches of the policy will be dealt with; and
- who is responsible for the policy and how it will be monitored and reviewed.
Training
Equality training is a key part of any good equal opportunities policy, because if staff and managers understand what the Ordinance means for them as individuals, then an organisation is more likely to comply with its obligations.
Whilst there is no legal requirement on organisations to undertake equality training, it can be an important part of being able to demonstrate, in the event a complaint is made, that the organisation is taking actions to prevent discrimination, harassment and victimisation. Also, it is more likely to create an inclusive atmosphere where everyone in the organisation can succeed.
Training might cover:
- an explanation of the Protected Grounds and what behaviour is and is not acceptable;
- the risk of ignoring or seeming to approve inappropriate behaviour;
- the impact that generalisations, stereotypes, unconscious bias and inappropriate language can have on people’s chances of obtaining work, promotion, recognition and respect and accessing goods, services, education, etc;
- what is the duty to make reasonable adjustments for a disabled person and how does it work; and
- the organisation’s equality policy and how it operates in practice, including any monitoring undertaken.
Diversity monitoring
As part of their equal opportunities policy, some organisations monitor and report on matters relating to their service users, students or members. There is no legal requirement on organisations to undertake diversity monitoring, but doing so can help to assess whether, for example, they are:
- engaging with individuals who are disadvantaged or under-represented;
- providing opportunities to people fairly whatever their Protected Grounds; 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.
Indirect discrimination can occur where an organisation has a policy or procedure which places people with a particular Protected Ground at a disadvantage and which cannot be objectively justified. Every organisation should spend time thinking about the interactions they have, or could have, with people who have different Protected Grounds and consider whether their policies or procedures have a greater negative impact on those individuals than others.
Reasonable adjustments
Service providers, schools and education providers, accommodation providers and clubs and associations will need to consider their policies in respect of handling requests for reasonable adjustments. In addition, service providers and schools and education providers will need to consider how they will comply with the proactive reasonable adjustment duty which will apply to service providers from 1 October 2023 (except in respect of changes to physical features), and to schools and education providers from no earlier than 1 September 2025 (again, except in respect of changes to physical features).
For more information see Chapter 3 Service providers guide.
Implementation dates
Most of the provisions of the Ordinance come into force on 1 October 2023.
There are some delayed provisions as listed below:
- Education – Not before 1 September 2025
- General duty of reasonable adjustment relating to physical features – Not before 1 October 2028
- Public sector duty to prepare accessibility action plans – Not before 1 October 2028
- The landlord specific duties do not come into force on 1 October 2023. The duties on residential and commercial landlords to allow (not unreasonably refuse) reasonable adjustments.
More information can be found in the implementation table.
An accessibility audit is an assessment of a building, an environment or a service to assess its accessibility for disabled people. The audit will help to develop an action plan to improve the accessibility of services. The duty for public sector service providers and public sector schools and education providers to develop accessibility action plans will come into effect no earlier than 1 October 2028.
For more information see Chapter 9 Service providers guide.
Chapter 10: The complaints process
One of the differences between complaints relating to work, and those relating to the provision of goods, services, education, accommodation and clubs and associations is that the individual will normally need to notify in writing the provider/organisation of their intent to make a complaint, and give them a month to resolve the issue, before the individual can proceed with making a formal, legal complaint. This notification requirement applies to any form of discrimination, harassment, victimisation and the proactive duty to make reasonable adjustments for disabled people generally. It does not apply to the sections of the Ordinance relating to reasonable adjustments (other than proactive reasonable adjustments), minor improvements and the duties on landlords not to unreasonably refuse a request for a tenant to make a reasonable adjustment.
This must be done in writing within six weeks of the act occurring otherwise the person will lose the opportunity to make a formal complaint. The letter or email should contain the following information:
- The name of the person making the notification of intent to complain, and if it is submitted on behalf of someone else (for example a child) who they are representing.
- Details about the potential complaint including as much detail as possible.
- The relevant Protected Ground or Grounds.
- The nature of the discrimination complained about.
- The date on which the incident happened.
- If known, the identity of any individuals in respect of which the potential complaint is about.
- How the person complaining would like to be contacted.
- What resolution the person complaining is seeking – this may simply be an apology, or a commitment to organise internal training to avoid similar issues arising in the future.
- The fact that if the potential complaint is not resolved within one month then the person may make a complaint to the Employment & Discrimination Tribunal (“the Tribunal”) under the Ordinance.
A copy of the letter/email should be retained as it will be needed as confirmation that the provider of the service has been contacted as required within the specified timeframe.
A person is not allowed to make a formal complaint to the Tribunal until at least a month after they have notified the provider/organisation of their intent to complain. This gives the service provider the opportunity to resolve the matter informally. However, the complainant may contact the Employment and Equal Opportunities Service (EEOS) for advice during this time and/or submit notification of intent to complain to the EEOS.
Pre-complaint conciliation
If the issue is not resolved to the individual’s satisfaction, then they must contact the Employment and Equal Opportunities Service (EEOS) to inform them of their intent to complain.
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 organise the conciliation to see if it is possible to reach a settlement. Any settlement agreement concluded by the EEOS will be legally binding and the complainant will then be unable to bring a claim before the Tribunal.
If either party does not wish to engage in pre-complaint conciliation, or the EEOS believes that it is not possible to settle the matter, then a certificate will be issued to the person who wishes to bring the claim. A person is not entitled to progress with their claim to make a formal complaint to the Tribunal until they receive a certificate from the EEOS. If they attempt to do so, then their claim will be rejected by the Tribunal. It is important to note that the period for bringing a complaint will be extended by pre-complaint conciliation.
Tribunal claims
If pre-complaint conciliation is unsuccessful, an individual can then decide if they wish to proceed with a formal claim. The appropriate form should be completed and submitted to the Secretary to the Tribunal. The party being complained about is also asked to submit relevant information. The forms will be available here [INSERT LINK] or from the Tribunal upon request from 1 October 2023.
The parties will be given a further period to attempt to settle the matter through conciliation. Normally, six weeks will be allowed to settle the matter through conciliation. The time period for conciliation can be extended where negotiations are in progress. If the complaint is not settled, then it may proceed to a hearing.
There are strict time limits for bringing claims. The formal complaint to the Tribunal should be made within a period of three months, beginning on the day when the act complained of was done. However, the period of time between the person notifying the EEOS of the intended complaint, in order to start pre-complaint conciliation, and the date on which they receive a certificate (which indicates the end of any pre-conciliation) will not count towards the time limit for bringing a claim to the Tribunal. In addition, if the time limit is due to expire within one month of the end of conciliation, it will also be extended so that a person would always have at least a full month in order to present their claim.
Burden of proof
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. 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. They must then prove, on the balance of probabilities, that they did not act unlawfully. If their explanation is inadequate or unsatisfactory, the Tribunal may decide that the act was unlawful.
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 is an order for the provider to undertake such steps that the Tribunal is satisfied:
- are practical;
- will not impose a disproportionate burden;
- relate to the discriminatory act; and
- will reduce the impact of that discrimination on the individual.
These steps must be undertaken within a specified period of time.
Compensation
The basic compensation for claims of discrimination against a provider of goods, services, facilities, education, accommodation or a club or association is an award consisting of:
- An amount for any financial loss up to a maximum of £10,000; and
- An amount payable for injury to feelings, hurt or distress of up to £10,000.
Joined complaints
Where a person makes more than one complaint against the same provider/organisation, or against a number of connected persons, then the Tribunal may decide to hear those complaints together (known as joined complaints).
For more information see Chapter 10 Service providers guide.
Templates
Examples of documentation can be found by following the links below:
Equal Opportunities Policy
Accessibility audit
Accessibility action plan
