Bedell Cristin Coffee Break - the latest employment law news from Guernsey

Guernsey 2022 minimum wage increases by 4%

On 1 January 2022, Guernsey's minimum wage prescribed in the Minimum Wage (Guernsey) Law, 2009 for adults will be increasing by £0.35p to £9.05 per hour.

In November 2018, the States of Guernsey announced a medium-term plan for minimum wage rates to increase in equal annual increments over the course of 5 years until the minimum adult wage reached the target of 60% of median earnings of employees in Guernsey based on a 40 hour working week ("the Plan").

Covid-19 caused a pause in that plan for 2021 rates and again, the Plan has been paused for 2022 with the intention that it is reignited in 2023.

For 2022, the States have determined to increase the minimum wage by 4%. This figure represents a half-way point between the latest available RPIX figure of 2.3% and the 5.7% increase that would be required if the Plan was to resume in 2022.

The rates will come into effect for all employers with effect from 1 January 2022.

States debate 2-4 November 2021

It was a very busy couple of days for the States in early November with the debate raging on a range of topical and emotive issues, all of which stemming from the proposed Discrimination Ordinance.

Guernsey paving its own way – “religious belief”

The States of Guernsey were asked to re-frame the proposed ground of “religious belief” to “religion or belief”.

This proposal was recommended to align the Guernsey definition with the UK and the Isle of Man, and thus enable Guernsey to utilise the well-established case law from the UK case of Grainger v Nicholson (2010) which, in layman's terms, provided a protection for "philosophical beliefs". By definition a "philosophical belief" is one which is a genuinely held belief (not an opinion) which concerns a "weighty" aspect of human life and behaviour that is worthy of respect in a demographic society and which an individual had to hold with "sufficient cogency, seriousness, cohesion and importance".

After a lengthy debate, and a very close split vote, this proposition was not carried. As a result, the Discrimination Ordinance will adopt the ground of "religious belief" which is currently defined as "a person’s religious belief, which includes their religious background or outlook, and also includes not having a religious belief". It will, relevantly, specifically exclude protection for any non-religious or philosophical beliefs.

Permitted discrimination - Catholic schools

The States were asked to agree that "exception 48 with respect to senior leadership positions in religious/faith schools should apply for a period of five years from the date of the Discrimination Ordinance coming into force". The proposed Discrimination Ordinance already provides various exceptions for religious institutions and for conduct based on religious beliefs, however 'exception number 48' was intended to limit those exceptions in so far as they applied to the recruitment of senior leadership positions at religious schools to a period of 5 years.

A balancing act is always required when considering competing rights – in this case, the right of teachers and senior leaders not to be discriminated against on the ground of religion or belief (or rather the lack of such religious belief) and the duty on the State to respect the right of parents to have their child educated in conformity with their own religion. In the period leading up to the recent States debate, the issue became political and the media had a field day. Perhaps not surprisingly, by an overwhelming majority, the States voted against the proposal to limit the exception to 5 years and by doing so permitted Catholic schools to discriminate against persons not of the Catholic faith in allowing such institutions of faith to require that their senior leaders to be practising Catholics.

A point seemingly lost in the media hype however is that the proposed exception on the grounds of religious belief does not include an exception which to allow religious organisations to take sexual orientation into account when employing an individual.

This means that when a person is recruited into employment for the purposes of organised religion or into a religious organisation, the organisation can discriminate on the basis of the individual's religious belief, but they cannot discriminate against the individual on the ground of their sexual orientation. This is a different position to that adopted by the UK, the Isle of Man and Jersey (all of which permit exceptions on that basis), however the Committee felt that including sexual orientation under the exception was seen as going "against the spirit of equality legislation".

Guernsey’s proposed definition of “sexual orientation”

Speaking of sexual orientation, the States also considered the proposed definition of “sexual orientation”. “Sexual orientation” as proposed is defined as: “a person's sexual orientation towards persons of the same sex, or persons of a different sex, or persons of the same sex and persons of a different sex”.

The debate concerned the use of the word "different sex", with the proposition being that it should be "opposite" sex. The concern was whether adopting the term "different" rather than "opposite" accepted the proposition that biological sex is not binary. This is a complicated and often controversial topic which the States have effectively kicked down the road to debate again in 2023.

Changes to the protected grounds and exemptions

Finally, the States almost unanimously voted to ensure that any changes to the descriptions of protection grounds and applicable exemptions must be approved by a resolution of the States before being enacted. This provides the States with the final approval on any changes that may be proposed in the future to the discrimination ordinance.

Discrimination Ordinance

We regularly get asked "when is the Discrimination Ordinance actually coming into effect". The short answer is that we don't know. We have not yet seen the draft text of the Ordinance, although we expect the drafting to be completed by the law officers no later than the end of 2021. Currently, the expectation is that the Ordinance will be in effect in Q4 2022, however the timing is yet to be confirmed. We will keep you updated as soon as we have certainty over timeframes.

Whilst it remains our view that the devil will be in the detail of the actual text of the Discrimination Ordinance, employers should start preparing now for the introduction of the law. We would recommend that all employers:

- undertake an equality and discrimination review of their recruitment processes, employment contracts, policies, procedures and handbooks and conduct an audit to identify potentially discriminatory text and/or practices.

- start thinking about accessibility generally and reasonable adjustments. Be pro-active in supporting your employees and responding to their needs – not because you have to, but because it makes good business sense.

- encourage an inclusive and open culture. Engage with your senior leadership team to focus on embedding values throughout your organisation that embrace difference and embody inclusiveness.

At the end of the day, your staff are your most valuable asset. The old adage, "happy wife, happy life" applies equally in the workplace … "happy team, achieving the dream".

If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.