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Discrimination (Jersey) Law 2013

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1 Discrimination (Jersey) Law 2013

2 Welcome Dexter Flynn English Solicitor Voisin
Dexter, admitted as a Solicitor in England and Wales in 1995, has been with Voisin’s Litigation department for over 15 years. A respected and experienced commercial litigator Dexter has been involved in many high profile cases over the years representing clients from numerous jurisdictions. Dexter is the co-author of the Jersey Employment Law chapter of the Practical Law Company’s ‘Labour & Employee Benefits Handbook’. In addition, Dexter is leading the Voisin team in its partnership with a specialist HR offshore company to offer the first qualification in Jersey to focus purely on Employment Law. He has been described by the Legal 500 as “very good on paper and exceptionally good with clients” and is noted as a ‘Leader’ by Chambers and Partners.

3 Welcome Stephanie Sanderson Legal Assistant Voisin
Stephanie joined Voisin in September 2013 as a trainee Solicitor, having secured a training contract with the firm. She graduated in 2010 after completing a Law degree at Durham University and went on to complete the LPC at the University of Law, Bristol in which she obtained a distinction. Stephanie worked at Voisin on student placements over several years before joining full time and was part of the firm’s student bursary scheme. She works as a Legal Assistant in the Litigation department, specialising in Employment claims as well as assisting on civil and criminal litigation cases. Stephanie will qualify as an English solicitor in September 2015.

4 Introduction Draft Discrimination (Jersey) Law 2013 (“the Law”) passed by the States on 14 May 2013. Will come into force on 1 September 2014. Will initially protect against race discrimination in the context of employment, the provision of goods, facilities and services, education, access to use of public premises, disposal or management of premises, clubs and requests for information. Fills a gap in current legislation against discrimination in Jersey. Slide 1 - DF

5 Discrimination – not limited to employment
Selection for employment (Article 9) Employees (Article 10) Contract Workers (Article 11) Partnerships (Article 12) Professional or trade organisations (Article 13) Professional Bodies (Article 14) Vocational Training (Article 15) Employment agencies (Article 16) Slide 2 – DF/MF

6 The Protected Characteristic - Race
Race includes: Colour; Nationality; National origins; and Ethnic origins. Slide 3 – SS/MF

7 Defining Race Which of the following are covered by the definition of race? Sikhs Jews Muslims Orthodox Jews Scottish Presbyterians Rastafarians Geordies People from Guernsey People from St. Peter Slide 4 - SS

8 Prohibited Conduct 4 Types Direct Discrimination
Indirect Discrimination 4 Types Harassment Victimisation Slide 5 - DF

9 Direct Discrimination
A person discriminates against another person (the “subject”) if, because of a protected characteristic, the person treats the subject less favourably than the person treats or would treat others. In relation to the protected characteristic of race, less favourable treatment includes segregating the subject from others. Slide 6 – DF/MF

10 Examples Mrs Winfrey was not invited for interview because she is black. Mr Donkey has been refused employment because he is from Guernsey and the interviewer, Mr Crapaud does not like people from Guernsey. Mr Majewski, a polish national was directly discriminated against when his manager told him not to speak in his “own language” at work. Slide 7 – SS/MF

11 Defences to Claims of Direct Discrimination
There is no specific Defence, however there is an Occupational Requirement Exception. The exception applies where being of a particular race is a requirement for the work. Is not an act of discrimination to apply a requirement that someone be of a particular race if it can be shown that: It is an occupational requirement; The application of the requirement is a proportionate means of achieving a legitimate aim; The person to whom the relevant person applies the requirement, does not meet it (or the relevant person has reasonable grounds for not being satisfied that the person meets it). Slide 8 - DF

12 Indirect Discrimination
A person discriminates against another person (the “subject”) if the person applies to the subject a provision, criterion or practice (“PCP”) which is discriminatory in relation to the subject’s protected characteristic. Equal treatment of all groups but effect of a “PCP” imposed by employer has disproportionate adverse impact on one group. Slide 9 - DF

13 Defences to Claims of Indirect Discrimination
Employer has a defence. Employer must show that the “PCP” is a proportionate means of achieving a legitimate aim. Justification is a two-part test: The business reason that underlies the PCP. The PCP is a proportionate means of achieving that aim. A rule prohibiting beards in a chocolate factory may be justifiable in the interests of hygiene but may be discriminatory. The employer should look at other means of achieving the objective such as requiring the use of beard nets. Slide 10 - DF

14 Victimisation A person victimises another person (the “subject”) if, the person treats the subject less favourably than that person would treat other persons, and does so because the subject has either: Made a complaint under the Law; Instituted proceedings against the person or any other person under the Law; Given evidence or information in connection with proceedings brought by any person against the person or any other person under the Law; Alleged that the person or any other person has committed an act which is prohibited by the Law; Protects complainants who intend to do any of the above and those merely suspected of doing them. Slide 11 - DF

15 Harassment A person harasses another person (the “subject”) if the person engages in unwanted conduct towards the subject that is related to a protected characteristic and which has the purpose or effect of: Violating the subject’s dignity; or Creating an intimidating, hostile, degrading, humiliating or offensive environment for the subject. Slide 12 - DF

16 Perception In deciding whether conduct has the effect described on the previous slide each of the following must be taken into account: The perception of the subject; The circumstances of the case; and Whether a reasonable person could regard the conduct as having that effect. There is no defence to claims of harassment. Slide 13 - SS

17 Liability An Employer is vicariously liable for acts of discrimination by its employees during the course of their employment. Applies regardless of whether the acts were done with the Employer’s knowledge or approval. Employee can also be held personally liable for acts of discrimination. Individual Liability of the Employee – Maximum £10,000. Slide 15 – SS/MF

18 Liability - Defences . Defence for Employer:
To show that he took such steps as were reasonably practicable to prevent an employee doing the act complained of or acts of that description. Where Employer has a defence, a claim can be made against the Employee who committed the act (only where act took place in course of employment). Defence for Employee: Employer made a statement to him/her that the act complained of would not be prohibited. In doing the act, he/she relied on that statement and it was reasonable for him/her to rely on that statement. . Slide 16 - DF

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