Knowledge

The countdown is on!  

We have for some time now known that the Prevention of Discrimination (Guernsey) Ordinance, 2022 (the "Ordinance") is set to come into effect on 1 October 2023.  On 2 August 2023, and after a year-long wait, the States of Guernsey (the "States") have now published guidance notes, offering practical guidance and useful information regarding the incoming rights and duties stemming from the Ordinance. The guidance notes are easily accessible on the Employment and Equal Opportunities Service website and this update is intended to serve as a brief overview of what's addressed and what employers need to be doing to ensure that they are ready.

 What do the guidance notes cover?

 The guidance notes work through the provisions of the Ordinance through a series of 10 chapters, addressing:

1. Discrimination and other prohibited conduct;
2. Protected Grounds;
3. Duty to make reasonable adjustments;
4. Equal pay and terms and conditions;
5. Employment and other arrangements;
6. Recruitment;
7. Guidance for managing staff;
8. Exceptions;
9. Preparing for the legislation; and
10.  The complaints process.

The guidance notes do not cover the areas of discrimination on the grounds of sex, maternity or pregnancy, marital status or gender re-assignment, as these matters are already covered by existing Guernsey discrimination laws and do not form part of the Ordinance. However, we note that the intention is to eventually repeal and consolidate the existing discrimination laws related to those grounds into the Ordinance in the coming years.  The guidance notes also do not extend to age discrimination, which is currently scheduled to be introduced in 2024.

Who does it affect?

As mentioned in our Discrimination Guide, the applicability of the Ordinance will extend beyond the traditional employer-employee relationship and will be equally applicable to service providers, clubs and associations, accommodation providers and come 1 September 2025, even education providers (except when acting as an employer, in which case the effective date will be 1 October 2023). However, for the purpose of this briefing and our series of briefings to follow, we will be focused on discrimination in the employment relationship.

When do the duties come into play?

Relevantly to employers, the implementation dates for many of the provisions of the Ordinance have been confirmed by the State's guidance notes to be 1 October 2023, except for the general duty of reasonable adjustments to physical features, which in all instances, is set to be implemented on 1 October 2028. Notably, all duties set to be implemented on 1 October 2023 will require a commencement regulation to be made by the Employment & Social Security before taking effect. Relevantly, any and acts of discrimination occurring before the relevant implementation date, will not be actionable under the Ordinance.

What should employers be doing to prepare for 1 October 2023?

It's always been our view that there is no magic key to ensure compliance with the spirit and effect of the Ordinance and if you've attended any of our seminars on the subject, you'll be familiar with the term 'Love-Q' (the Love Quotient). The simple premise of Love-Q is to build an emotionally sympathetic culture by treating your employees well and demonstrating true caring for the people you manage or work with and finding ways to act with intention and concern. Workplaces with high levels of Love-Q that are culturally supportive and inclusive are unlikely to be plagued by concerns of discrimination and inequality.

However, that is of course the ultimate cultural goal for any business, and in the meantime, there are certain key things that all employers should be doing to prepare for the new Ordinance. The guidance notes provide certain helpful steps which employers can take in preparing to be compliant:

• Raise awareness around equality and diversity in the workplace. This can be done by effective education and training of the workforce.
• Undertake an introspection into business practices which act as barriers to equality in the workplace and take active measures to eradicate these barriers, where possible, by perhaps changing certain business practices.
• Carry out audits of your workforce to assist with identifying employees who have or might have a disability and open a dialogue with these employees to consult with them and understand what reasonable adjustments the business may introduce to assist them in removing any disadvantage suffered because of their disability and/or, assess whether existing reasonable adjustments are appropriate and remain fit for purpose.
• Get the right policies and procedures in place and offer employees training - employers need to have clear and accessible policies setting out the expectations and rights in relation to equality in the workplace. Some of the relevant policies employers need to ensure they have included: an equality, diversity and inclusion policy, an equal opportunity policy, an effective grievance policy and managing absences and capability policies. Having those policies in place, however, is not enough, it is also necessary for employers to ensure that employees receive effective training both on the Ordinance itself and their specific policies. Ideally this should be done ahead of 1 October 2023, however if this is not reasonably practical, we would recommend that the training should be provided before the end of 2023. Employers should be minded ensuring that employees receive refresher training.
• Diversity monitoring is important for employers to maintain a level of self-accountability regarding their commitments to diversity and inclusion in the workplace and it is recommended that diversity monitoring be carried out at all stages of the employment life cycle.

As an opening to our series of targeted briefings on certain aspects of the Ordinance and the Guidance Notes, please click here to access our first briefing - "Taking care of the Carer", where we discuss the ground-breaking and incoming protected ground of Carer Status, the recent developments in respect of carers in the UK and our views on what the development of the UK position in respect of carers could like for Guernsey.

We will also be undertaking a review and alignment of our Guernsey Discrimination in Employment Guide to incorporate the guidance notes. In the meantime, however, our Guide serves as a helpful tool to have at hand and assist employers in navigating through the grey cloud in the quest to demystify discrimination law.

Are you ready? Reach out to the Bedell Cristin team for assistance with the relevant policies and procedures and necessary training sessions and seminars to gear up.