Discrimination and the Law

What is discrimination?

In Jersey law, discrimination occurs where an individual is treated unfairly compared to others as a consequence of one or more “protected characteristics”. The current list of protected characteristics under the Discrimination (Jersey) Law 2013 (the “Law”) includes:

• race
• sex
• sexual orientation
• gender reassignment
• pregnancy and maternity
• age
• disability

These protected characteristics have evolved over time. Disability was only added as a protected characteristic in 2018. As can be seen, discrimination law is relatively new. As yet, there is no protection from discrimination on the grounds of religion, belief, marriage or civil partnership. These are, however, protected characteristics in the UK. It will be interesting to see whether, and if so when, Jersey will extend the protected characteristics to include those characteristics.

The Law also protects against other types of unfair treatment, such as harassment and victimisation, which are deemed to be forms of discrimination.

The Law does not require any minimum period of employment for a discrimination claim to be made. Discrimination is unlawful from the moment a role is advertised and interviewed for, through to the last day of employment and beyond.

Discrimination

Discrimination is a type of unfair treatment. Discrimination can be “direct” or “indirect”.

“Direct discrimination” occurs when someone possesses (or are thought to possess) one or more of the protected characteristics and is treated unfairly as a consequence. An example of this would be where an individual is not promoted because of a protected characteristic they possess, such as race or sex.

“Indirect discrimination” occurs when a practice, policy or rule is in place that in its application or effect is less fair to a certain group of people. An example would be a policy that all employees must work full-time hours; this would likely be indirectly discriminatory because, whilst on the face of it the policy applies equally to all employees, it would in effect discriminate against those who needed to work reduced hours as a result of childcare requirements or disability.

Harassment and Victimisation

Victimisation and harassment are different forms of discrimination.

“Victimisation” occurs where an employee is subject to less favourable treatment as a result of having previously made or supported a complaint relating to a protected characteristic. An example would be the case of an employee who gave supportive evidence in support of a colleague who had made a race discrimination claim against their manager. If, after giving that evidence, the employee started to be treated unfairly, that would amount to victimisation.

“Harassment” is unwanted behaviour which an employee may find intimidating. These include actions such as violating a person’s dignity, humiliation, or hostility or insolence towards that person. Harassment can occur verbally, in writing, or as a consequence of physical acts.

It is important to recognise that the Law is not just restricted to the sphere of employment.  It also covers areas touching and concerning:

• Provision of Goods and Services: so clients can bring claims under the Law against any business, this would include, for example, discriminatory practices in a restaurant or other establishment.
• Management of Property: a landlord can’t discriminate on the grounds of a protected characteristic when offering a property for rent.

The Law has several exceptions, meaning that certain acts of discrimination are not actionable under the Law.

These include:

• Complying with any act of Court or enactment
• Compliance with the law of another country (provided it is directly applicable and enforceable against the alleged perpetrator
• Safeguarding national security
• A positive action (but not in relation to the recruitment or promotion of individuals) which is a proportionate means of achieving enabling or encouraging person who share a particular characteristic to overcome or minimise that disadvantage, meeting those needs or enabling or encouraging persons who share the a particular protected characteristic to participate in that activity
• Where there is a genuine occupational requirement for a person to have a protected characteristic and it can be shown that the application of that requirement is a proportionate means of achieving a legitimate aim and the person to whom the requirement was imposed on does not meet it or there are reasonable grounds for not being satisfied that the person meets that requirement
• Where a club has as its principal object of providing benefits to people who share a protected characteristic (e.g. restricting membership to only those people)

Advice should be sought before considering the use of any of the exemptions contained under the Law.

The Benefits of Equality and Diversity in the Workplace

Not only is it important to promote equality and diversity because it is, quite simply, the right thing to do, but it is also vital for an employer in order for their business to thrive. Understanding discrimination and being proactive in protecting employees makes a business better. Recent evidence demonstrates that equality measures can benefit companies in the following ways:

1. Improved ability to attract talent and skilled workforce.
2. Increased staff retention, workforce satisfaction and lowered employee turnover.
3. Improved innovation and creativity.
4. Access to new markets and improved customer satisfaction.
5. Stronger brand identity and reputation.
6. Reduced risks of workplace conflict.
7. Reduced risk of litigation.

The costs of not taking these issues seriously have been demonstrated by a recent report which records that the Government of Jersey has had to deal with at least 13 complaints of discrimination since 2018. Most of those complaints have been resolved with financial settlements. In a private enterprise, the money to settle such claims comes from the bottom line. A further, hidden, cost to a business is the amount of management time and energy that is taken up dealing with such complaints.

How can you tackle diversity in the workplace?

Business spending on diversity, equity and inclusion (DEI) initiatives has skyrocketed in the last decade. It is estimated the global market for DEI reached $7.5 billion in 2020 and is expected to double by 2026. To justify these initiatives, many companies claim that diversity is beneficial for business growth.

Research has shown that diverse organisations foster better employee engagement and productivity and they allow for better problem-solving abilities as varying perspectives often approach business challenges in a new way.

The research that diversity in the workplace powers innovation and financial performance continues to stack up. Some studies have found that companies with pro diversity policies performed better. Research by Forbes tells us that decisions made and executed by diverse teams delivered 60% better results and inclusive teams make better business decisions 87% of the time. The reason for this is clear: more diverse companies have greater levels of innovation.

LinkedIn’s Global Recruiting Trends report found that diversity is a key trend that has impacted the way organisations hire their people. According to the report’s findings, 78% of companies prioritise diversity to improve culture, and 62% of companies prioritise it to boost financial performance.

However, certain industries in particular, such as financial services, still have significant lack of a diverse workforce, mainly at senior levels. Two factors contributing to this underrepresentation are the rate at which employees leave a company and the rate at which employees get promoted. As well as this, research conducted by McKinsey has found that women in particular have been negatively impacted by the pandemic as it has intensified pre-existing challenges that working women already faced i.e. childcare responsibilities.

What can be implemented to tackle DEI at work?

• Make organisational change last
• Have policies that promote diversity, equity, and inclusion in the workplace
• Be aware of unconscious bias
• Communicate the importance of managing bias
• Promote pay equity
• Develop a strategic training programme
• Acknowledge holidays of all cultures
• Make it easy for your people to participate in employee resource groups
• Mix up your teams
• Facilitate ongoing feedback
• Assess and improve company policies
• Track progress over extended periods of time

Employers are responsible for staff and any discrimination complaints. Over the last two years or so, there has been an increase in employment tribunals for protected characteristics such as race, age, and sex. Taking steps to prevent unlawful discrimination can include updating policies and regular inclusion and diversity training, this is essential for all organisations.

Positive and productive changes in organisations come with structural change at all levels, and these changes take time. We can assist you to avoid tribunal claims for discrimination and to create more inclusive workplaces.

Get in Touch

At BCR Law LLP, we work proactively to assist businesses in promoting equality and diversity. You can consult us for expert advice on compliance, fair treatment of staff, developing and implementing bespoke policies, and defending claims. If you would like to discuss anything further, please do get in touch with our Employment Law team.