Knowledge

The Discrimination (Disability) (Jersey) Regulations 2018 will come into force on 1 September 2018 whereby individuals will be protected against discrimination on account of disability.

Who will be protected by the new law?
The new law will apply to any person who possesses one or more long-term physical, mental, intellectual or sensory impairments.

A long-term impairment is defined as an impairment which has lasted, or is expected to last, for at least six months or, if shorter, until the end of a person's life.

The Regulations provide the right for a person to refer a complaint of discrimination to the Employment and Discrimination Tribunal (the "Tribunal").

What are the sanctions in the event of a breach?
If the Tribunal finds that discrimination has occurred then it may award compensation of up to £10,000 for any financial loss and up to £5,000 for hurt and distress (subject to an overall limit of £10,000).

What are the obligations of property owners?
Property owners and occupiers need to be aware that they may need to make "reasonable adjustments" to their premises to facilitate their use by disabled persons.

The law states that if a disabled person is put at a significant disadvantage owing to a physical feature of premises, then that person may have grounds for a claim of indirect discrimination unless reasonable steps have been taken to adapt the offending feature.

If the property owner knows (or reasonably should have been expected to know) of the substantial disadvantage that the physical feature would cause to the disabled person, then the owner could be liable in a claim for discrimination.

What constitutes a physical feature?
Physical features of premises include:

• Features arising from the design or construction of a building;
• An approach or access to a building; and
  
• Fixtures, fittings, furniture or furnishings at the premises.

What kind of adjustments should be made to premises?
Each property and its features will be assessed on a case-by case basis. However, property owners may wish to consider whether they should be making some or all of the following adjustments to their property:

• Removing the feature in question;
• Altering the feature; or
• Providing a reasonable means of avoiding it.

Reasonable adjustments that businesses may need to make could include providing disabled parking, making ramps available to allow wheelchair access, ensuring entrance and exit points are unobstructed and providing sufficiently accessible signage.

Do I need to make the necessary adjustments before 1 September 2018?
The regulation regarding adjustments to premises does not come into force until 1 September 2020, allowing sufficient time for property owners to make the appropriate changes. However, it is likely that many adjustments to premises will require planning or bye-laws approval. Therefore, property owners should be considering their options at an early stage.

Landlord and tenant issues
If the premises are leased, you should ensure that the lease clearly sets out whether the landlord or the tenant will be responsible for carrying out the works and who will meet the costs.

The lease will need to provide the necessary rights for either a landlord or tenant to alter the premises in order to comply with the new law.

For landlords with existing leases that will expire prior to the deadline of 1 September 2020, prospective new tenants may not be willing to take a lease until the premises are deemed to be compliant with the new law. This means that works to bring the premises into line with the new law must either be carried out by the landlord or at the landlord's expense.

For tenants, it is likely that a well-advised landlord will insist upon adjustments being carried out by the tenant, at the tenant's cost. It is usually the tenant's responsibility to comply with all laws, including new laws that could not have been foreseen.

If the premises will need to be closed for a period of time, is the tenant entitled to a suspension or reduction in rent?

Are there any exemptions from the new law?
Property owners and occupiers must comply with new law except where a modification to be made to premises in order to comply with the new law would result in a breach of the Building Bye-laws (Jersey) 2007.

Summary
The new law will come into force on 1 September 2018 and will affect most property owners and occupiers in Jersey.

Property owners and occupiers will have a responsibility to ensure that they do not indirectly discriminate against disabled persons.

This means that many properties will need to be modified as far as reasonably possible to ensure that they can be accessed and used by disabled persons.

Whilst property owners and occupiers will have sufficient time to make the necessary adjustments to their premises, they should be assessing their obligations as soon as possible and planning their next steps, especially if the property is subject to a lease.

How we can help
At Bedell Cristin, we have a team of property and discrimination law experts who can guide you through your obligations under the new law and the steps that you will need to take to ensure compliance.

Our specialists across various legal fields work together as one team to deliver a smooth, consistently excellent service in a cost-effective manner.