BCR Explores Law – 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.

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 has 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 off 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.

Get in Touch

At BCR Law LLP, we work proactively to assist businesses to promote 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.