Knowledge

It's HERE! Guernsey's discrimination landscape has formally evolved – here's a synopsis of what you need to know…

With the Prevention of Discrimination (Guernsey) Ordinance, 2022 (the "Ordinance") having come into effect on 1 October 2023, Guernsey now provides islanders with greater protection than ever before against unlawful discrimination on the basis of nine protected grounds: disability, race, carer status, sexual orientation and religion or belief (newly introduced in the Ordinance) and sex, marital status, gender reassignment and maternity (under existing legislation).

The Ordinance aims to prevent what we've colloquially dubbed as the 'seven sins', prohibiting discrimination on the basis of a Protected Ground. These include:

• direct discrimination;
• indirect discrimination
• discrimination by association;
• discrimination arising from a disability;
• failure to make reasonable adjustments for disabled persons

and additionally prohibits:

• victimisation and;
• harassment.

Click here to access our Guernsey Discrimination in Employment Guide, where we explore each of the seven sins with worked examples of the different types of discrimination.  

Drawing from the well engrained adage of the 'carrot and stick', being the concept that in order to motivate or achieve a particular outcome, one must be either rewarded (the carrot) or, like in this instance, penalised (the stick). The Ordinance can be likened to both the carrot and the stick.  

The 'carrot' is linked to the underlying purpose of the Ordinance, which is, in a nutshell, to eliminate discrimination, educate on the importance of equality and an acceptance of everything which makes us unique to one-another and advance equal opportunity by levelling the playing field for all and offering assistance by way of reasonable adjustments for persons with disabilities.

The 'stick' involves a set of rules and obligations protecting against discrimination which, if breached, result in financial penalties being imposed on parties. Specifically, the Tribunal now has the power to make compensatory awards of up to six months' pay for a single complaint of discrimination or up to nine months' pay for multiple complaints of discrimination arising from the same set of circumstances. This is in addition to up to £10,000 for injury to feelings, hurt or distress.

The consequences of discrimination in the workplace are now far greater than they have ever been and whilst the 'stick' of these penalties are intended to be the last resort, they will no doubt feature strongly in employers' minds when making relevant decisions concerning protected employees.

In that respect, employers should be mindful that they may be held vicariously liable for the actions of their employees where a discriminatory act occurs in the 'course and scope of employment'. In order to mitigate that liability, employers must take all 'reasonably practical steps' to ensure that discriminatory acts do not occur in their organisation. This includes (without limitation but relevantly for employers at this time, with the recent introduction of the Ordinance):

• ensuring that employers have appropriate policies in place which not only address discrimination, diversity, equality and inclusion and bullying and harassment, but which also provide a framework for dealing with capability and managing sickness absences. We have designed bespoke policies which cover the key areas for employers and provide a useful framework to navigate through the tricky areas associated with disability and carer status; and
• ensuring that all employees are regularly provided with a sufficient level of effective and up-to-date training, regarding discrimination, harassment and victimisation. If you have not already delivered internal training on the Ordinance for your staff, we offer tailored and interactive training sessions on the Ordinance, so please get in touch with your usual employment contact to find out how we can support your business.