Discrimination legislation promotes and protects people's right to equality of status, opportunity, treatment and non-discrimination on the basis of various 'grounds of protection' specified in the legislation.
Frequently asked questions
Why is discrimination legislation needed?
The Committee for Employment & Social Security is keen to ensure that a wide range of training options are available to ensure that employers and service providers (including providers of goods and services, accommodation, education and clubs and associations) have the opportunity to familiarise themselves with the requirements of the new legislation at an appropriate level, before it comes into force.
When does the new legislation come into force?
The new legislation will come into force on 1st October 2023.
What is your aim as the Consortium?
To deliver a comprehensive training and development programme to support the implementation of the new Discrimination Ordinance for the Commitee for Employment and Social Security.
• Will the online sessions be recorded? Can I access the recording at a later date?
The online sessions were all recorded, a training video of each is now available on this website within the Training section.
• Where can we access training for the wider workforce?
The States of Guernsey run Disability Awareness training which can be booked at https://states-of-guernsey.accessabletraining.co.uk/login/create-account The partners in the Consortium also offer training, and are happy to be contacted to discuss your specific requirements and whether they are able to assist. Recordings of the 5 x training sessions are now available on this website.
Can someone bring a claim in relation to act of discrimination that occur prior to 1 October 2023?
No. A person can only bring a claim in relation to acts of discrimination that occur after the Ordinance comes into force.
Can former employees bring a claim under the Ordinance, in relation to acts of discrimination that occurred before they left employment?
Yes, provided that the discriminatory act(s) occurred on or after 1 October 2023, and the time limits for bringing claims are observed. Claims must normally be brought within 3 months of the act complained of.
If a person succeeds in a claim for equal pay, can compensation be awarded in respect of the period prior to 1 October 2023?
No. The Ordinance provides that the Tribunal can award up to 6 years' back pay, but awards can only be made in respect of the period from 1 October 2023 onwards. For example, if an employer is found to have breached the equal pay provisions on 1 October 2024, only one year's back pay will be awarded.
- Q - Do employees need to have worked for an employer for a particular length of time in order to be protected under the new Discrimination Ordinance
A – No, employees are protected from day 1 of employment. Applicants for employment are also protected.
- Q – Do employees need to work a minimum number of hours a week or be above a certain age in order to be protected under the new Discrimination Ordinance?
A – No, all employees are protected.
- Q – Are sporting organisations covered by the Ordinance?
A – Yes, depending on the circumstances the sporting organisation may be a service provider, club and/or employer.
- Q – Does the new Discrimination Ordinance prohibit bullying?
A – Bullying is only covered to the extent it relates to a protected ground. Where this is the case, the bullying may well constitute unlawful harassment.
1. Q – If a role becomes vacant and we hire a replacement at a lower rate of pay, would this contravene the new Discrimination Ordinance?
A – Only if the lower rate of pay was due to a protected ground, or because of indirectly discriminatory pay practices.
2. Q – On what grounds could an employee bring a claim for equal pay?
A – Under the new Discrimination Ordinance, claims can be brought based on disability, carer status, race, religion or belief or sexual orientation. An employee who considers that they have been paid less due to their sex, gender reassignment, marital status or maternity leave cannot bring a claim for equal pay (as these protected grounds are not yet included in the new Discrimination Ordinance). However, they may be able to bring a claim for direct discrimination under the Sex Discrimination (Guernsey) Ordinance, 2005.
1. Q – Where medical advice is sought regarding a disabled or potentially disabled employee, should the questions be tailored to the employee's role and situation?
A – Yes. This helps to ensure that the advice received is as relevant as possible.
2. Q – What should an employer do if it is not clear whether or not an employee's medical condition is likely to last 6 or more months, and qualify as a disability?
A – In these circumstances, the employer can ask the employee to provide medical evidence regarding the likely duration of their condition.
3. Q – Can an employee be considered disabled even though they do not yet have a formal diagnosis?
A – Yes, provided that the employee has a physical, mental or other impairment which is expected to last 6 or more months, they will be considered disabled. They do not need to be able to show that they have a diagnosed medical condition.
1. Q - Are reasonable adjustments legally required across all five new protected grounds or just disability?
A – The duty to make reasonable adjustments only applies in relation to disabled persons. However, duty holders may need to make adjustments for those with other protected grounds who are placed at a disadvantage by a provision, criterion or practice, in order to avoid claims for indirect discrimination.
2. Q – How can employers work out whether an adjustment, which has been requested by an employee, is really needed?
A – The employee will usually be a good judge of whether or not a particular adjustment is required, but in some situations the employer may wish to seek medical advice, to check that the requested adjustment would assist the employee and/or whether any other adjustments should be considered.
3. Q - When will an employer be able to refuse to make a reasonable adjustment because of cost?
A – This will depend to a large extent on the resources of the employer. More is likely to be expected of larger employers than smaller employers.
4. Q – If an employee wants to reduce their hours but they are working under an employment permit which requires the role to be carried out on a full time basis, is this a good reason for refusing to adjust their hours?
A – Yes, employers only need to make adjustments that are reasonable, and if an adjustment would result in the employee breaching the terms of their employment permit, it would not be considered to be reasonable.
5. Q – Is it discriminatory to allow one employee to work flexibly (due to a protected ground) but not to allow another employee to do so?
A – Not unless the other employee also has a need to work flexibly which is related to a protected ground.
6. Q - Can you ask new employees to declare if they require any reasonable adjustments before they join to allow you to prepare?
A: Yes. The most appropriate time to ask these types of questions is likely to be during the interview process, when you can discuss with all candidates the key requirements for / elements of the role and enquire as to whether they would need any reasonable adjustments to carry these out. The Ordinance specifically enables you to ask questions during a recruitment process if the questions are necessary to establish whether the applicant will be able to carry out a function that is intrinsic to the work concerned. It would also be advisable to ask applicants whether they require adjustments to the recruitment process itself.
1. Q – Can employers positively discriminate in recruitment?
A – Employers can take positive action with the aim of ensuring equality or a greater degree of equality on any of the protected grounds. This would permit an employer to set up recruitment events targeted at employees from underrepresented groups, for example. However, it would be unlawful to impose quotas in recruitment or to appoint someone because they have a protected ground, where there is another candidate who would be better qualified for the role.