Kate Hamilton, Associate

Kate Hamilton, Associate

On 1 September 2018 the new Discrimination (Disability) (Jersey) Regulations 2018 (the “Law”) came into force and businesses need to take action now to ensure that they are ready for this significant change to the law.

The Discrimination (Jersey) Law 2013 currently protects individuals in Jersey against discrimination on the grounds of race, age, sex, sexual orientation, gender re-assignment, pregnancy and maternity. The Law means that disability has also become a “protected characteristic” and businesses must make reasonable adjustments so that individuals are not treated unfavourably because of their particular disability.

The Law is wide-ranging in its application, applying “to acts of discrimination committed in Jersey”. This includes at work, as a consumer, in education, when using public services, when buying or renting property or as a member of a club or association.

What is a disability?

Someone is deemed to have a ‘disability’ under the Law if they have one or more long-term physical, mental, intellectual or sensory impairments which can adversely affect their ability to engage or participate in any activity in respect of which an act of discrimination is prohibited under the Law.

A long-term impairment is one which has lasted, or is expected to last, for not less than 6 months or is expected to last until the end of the person's life.

Having a disability for the purposes of the Law may include for example a sight or hearing impairment, cancer, HIV infection, disfigurement, clinical depression, schizophrenia, ADHD, Autistic Spectrum Disorder, type 1 diabetes, suffering from panic attacks, severe vertigo, learning disability, as well as diet-controlled conditions such as nut allergies, lactose intolerance and obesity.

The duty to make reasonable adjustments will not arise unless the employer knows or ought reasonably to know of the disabled person’s disability and that the disabled person is likely to be placed at a substantial disadvantage.

What is discrimination?

The Law prohibits four types of action, subject to certain exceptions, which are deemed to constitute discrimination:

- Direct discrimination – meaning treatment of an individual less favourably than another person because of their disability or something arising as a consequence of their disability, where it cannot be shown that such treatment is a proportionate means of achieving a legitimate aim. For example prohibiting a child with Downs Syndrome with a supporting adult from accessing a playgroup is likely to be direct discrimination.

- Indirect discrimination – meaning the application of a provision, criterion or practice, that disadvantages people with a particular characteristic, and which cannot be shown to be a proportionate means of achieving a legitimate aim. For example a requirement to have minimum academic qualifications for a role where there is no genuine need for the prescribed qualifications, could discriminate against some people with learning disabilities.

- Victimisation – meaning the suffering of less favourable treatment as a result of raising a complaint of discrimination. Victimisation would occur for example if an employee was overlooked for promotion because of their making a claim against their employer under the Law.

- Harassment – meaning unwanted conduct which relates to a protected characteristic that violates the dignity of the victim or creates an intimidating or offensive environment, for example bullying because of a bodily disfigurement.

Requirement to make reasonable adjustments

There is a requirement to make reasonable adjustments to ensure that a disabled person is not put at a substantial disadvantage in comparison with persons who are not disabled, unless such measures would impose a disproportionate burden on the organisation.

(a) Provision, criterion or practice

Making reasonable adjustments might involve altering or removing a provision, criterion or practice that is putting the disabled person at a substantial disadvantage. Depending on the circumstances this might potentially involve for example:

- Modifying disciplinary or grievance procedures. For example, an individual with clinical depression is allowed to take a friend (who does not work with them) to act as an advocate at a meeting with their employer about a grievance. The employer also ensures that the meeting is conducted in such a way so that the individual is not patronised or disadvantaged.

- Adjusting redundancy selection criteria. When an employer is taking absences into account as a criterion for selecting people for redundancy, it might consider discounting periods of disability-related absence.

- Modifying performance-related pay arrangements. For example, a disabled individual who is paid purely on their output needs frequent short additional breaks during their working day – something the individual’s employer agrees to as a reasonable adjustment. It is likely to be a reasonable adjustment for the employer to pay the individual at an agreed rate (for example, their average hourly rate) for these breaks.

(b) Auxilliary aid

Where a disabled person would, but for the provision of an auxillary aid, be put at a substantial disadvantage in comparison with those who are not disabled, the employer must take such steps as it is reasonable to have to take to provide the auxillary aid. An auxillary aid is something which provides support or assistance to a disabled person. It can include provision of a specialised piece of equipment such as an adapted keyboard or text to speech software. Auxiliary aids also include auxiliary services for example the provision of a sign language interpreter or a support worker for a disabled worker.

(c) Physical features

The duty to make reasonable adjustments can arise where a physical feature of the employer’s premises puts a disabled person at a substantial disadvantage in comparison with those who are not disabled.

For the purposes of the Law a physical feature includes

(i) a feature arising from the design or construction of a building;

(ii) a feature of an approach to, exit from or access to a building;

(iii) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises; and

(iv) any other physical element or quality.

Such physical features may include for example steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exists (including emergency escape routes), internal and external doors, gates, toilet and washing facilities, lighting and ventilation, lifts and escalators, floor coverings, signs, furniture and temporary or movable items.

Such reasonable adjustments may include removing the physical feature in question, altering it or providing a reasonable means of avoiding it. For example clear glass doors at the end of a corridor in a particular workplace might present a hazard for a visually impaired worker. A reasonable adjustment may be to have a frosted film or safety stickers applied to the glass. For a wheelchair user, widening a doorway, providing a ramp or moving furniture might form part of the reasonable adjustments.

Reasonable steps

It would be for the Employment and Disability Tribunal to decide whether the adjustment imposed a disproportionate burden on the employer. When judging whether an adjustment is reasonable the Employment and Disability Tribunal would be likely to take the following factors into account:

(i) the effectiveness of the adjustment in removing the disadvantage;

(ii) the extent to which the adjustment is a practical option;

(iii) the cost of any steps that need to be taken to make the adjustment;

(iv) the extent of the financial, administrative and other resources available to the employer or service provider (including any provided by a third party); and

(v) the characteristics and size of the employer or service provider in question.

For example an employee with a particular disability may, as a result of their medication, feel particularly tired in the mornings. Whether an adjustment varying the employee’s hours of work would be reasonable would depend on the size of the employer and related to that the effect on the service provided by organisation and the extent of the associated burden on other members of staff.

Businesses need to take action now to ensure they are compliant with the Law which has potentially wide-ranging implications for your organisation. Please let us know at Pinel Advocates if we can provide bespoke advice to your business on this or any other legal issue, or if you would like us to provide you, free of charge, with our Self-Assessment Disability Discrimination Audit.

Please contact Kate Hamilton if you have any queries.