Sex Discrimination Consultation: summary of responses.

STATES OF JERSEY

SEX DISCRIMINATION CONSULTATION: SUMMARY OF RESPONSES

Presented to the States on 19th September 2014 by the Minister for Social Security

STATES GREFFE

2014   Price code: D  R.137

Social Security Department

Summary of Responses

WHITE PAPER – LAW TO PROTECT AGAINST  18th September 2014 SEX DISCRIMINATION

SUMMARY OF CONSULTATION DETAILS

The  Minister  for  Social  Security  ("the  Minister")  issued  a  White  Paper[1]  inviting representations  from  stakeholders  on  the  proposed  scope  of  protection  against discrimination on grounds of sex, prior to the Minister requesting law drafting. The Minister invited comments on a number of policy issues, which were outlined in the White Paper, including the following –

1. How to deal with discrimination and equality in pay systems.

2. What characteristic(s) should be protected?

- Sex

- Pregnancy and maternity

- Sexual orientation

- Gender re-assignment

- Marriage and civil partnership

3. What  exceptions  should  apply  so  that  an  act  is  not  an  act  of  sex discrimination?

- Religion

- Pay during maternity leave

- Positive discrimination

- Charities and associations.

The Minister wishes to fully consider any concerns and questions that have arisen during consultation in order that appropriate legislation can be prepared.

Background

The Discrimination (Jersey) Law 2013 ("the Discrimination Law") came into force on 1st September 2014, with race as the first protected characteristic. Further protected characteristics can be introduced by Regulations made under the Law. This enables a consistent and equitable approach to different types of discrimination, and simplifies the complexity that has resulted in other jurisdictions as a consequence of having separate and different Laws.

The  Minister  proposes  to  lodge  for  States  debate  draft  Regulations  that  would introduce  protection  against  discrimination  on  grounds  of  sex  and  related characteristics.

The Minister  had  committed  to  conducting  further  consultation  with  stakeholders before introducing other protected characteristics; and to ensuring that the legislation is  extended  in  a  way  that  is  sympathetic  to  the  difficulties  faced  by  businesses, particularly small businesses. Sex discrimination is likely to be more complex than race discrimination because sex discrimination necessarily involves issues relating to equal  pay,  pregnancy,  maternity  and  family-friendly  rights.  These  issues  were discussed in the Minister's White Paper.

The Minister hopes that draft legislation will be prepared later this year and that sex discrimination Regulations will be lodged for States debate in the first half of 2015. The  Minister  intends  that  the  sex  discrimination  Regulations  and  family-friendly rights2 (including maternity, parental and adoption leave) would come into force on the same date – 1st September 2015.

OVERVIEW OF CONSULTATION RESPONSES Consultation method and respondents

A White Paper was issued on 14th March 2014, inviting interested parties to respond by completing the online survey, sending comments by e-mail or post, or by asking to be involved in a focus group.

The Minister received 152 written responses to the consultation. The responses can be categorised into the following respondent types –

The following 24 respondents agreed that their written comments may be attributed to them by name –

1. Institute of Directors Jersey Branch
2. Unite the Union
3. Jersey Community Relations Trust
4. Jersey Advisory and Conciliation Service (JACS)
5. Jersey Chamber of Commerce
6. Chartered Institute of Personnel and Development, Jersey Group
7. The Jersey Child Care Trust
8. Trans* Jersey

2 P.109/2014, adopted by the States in July 2014

9. Huw Thomas, Carey Olsen
10. Wendy Lambert
11. Jersey Youth Service users
12. Sue Groves, Superintendent Registrar
13. Linda Sohawon
14. Derek Bernard
15. James Woodhead
16. Deborah Samantha Dors
17. Ian Brandon
18. Lisa Wallser
19. Katherine McAleer
20. Sarah Savage
21. Anna Shipley
22. Tree
23. Nicolas Jouault
24. M.P. Chatterley.

The individuals who had requested to be involved in a focus group discussion had different areas of interest that they wished to discuss, and so the Minister decided that it would be more helpful to offer private meetings to allow those individuals an opportunity to fully express their views. The following respondents met the Minister in July to present their views on the issues raised in the Consultation Paper –

1. Caroline Powell
2. Vic Tanner-Davy (Trans* Jersey)
3. Martin Gavet (Liberate)
4. Ellie Jones (Liberate)
5. Pippa McCarthie (Liberate).

SUMMARY OF RESPONSES

The Minister believes that it should be unlawful to discriminate on the grounds of sex, pregnancy, sexual orientation and gender re-assignment in each of the areas covered by the Discrimination Law. The Minister believes that this protection can be provided without placing an unfair burden on businesses in Jersey, provided that appropriate exceptions are made for specific situations.

The specific issues on which the Minister was seeking views is set out in the preamble to each set of questions and can be found in the White Paper.

The following summary sets out an overview of the responses received to each survey question, including quotes from some of the respondents. It does not set out all of the responses in full. The selected quotes are intended to give an indication of the range of responses that were received to each question, and to allow some of the specific issues raised  by  respondents  to  be  considered  and  addressed  by  the  Minister  in  the Outcomes' boxes.

PROTECTED CHARACTERISTICS SEX DISCRIMINATION

1. Respondents were asked if discrimination based on sex should be unlawful in broadly the same circumstances that the Discrimination Law makes it unlawful to discriminate on the grounds of race.

This was the first question and it received the most responses (149). As a percentage of those who responded to the question, 93% agreed that discrimination based on sex should be unlawful in broadly the same circumstances that the Discrimination Law makes it unlawful to discriminate on the grounds of race, and 7% disagreed.

A number of respondents commented in support of the proposed approach including the following –

"Chamber believes that this would allow for consistency across the laws and would also be the morally and ethically correct thing to do." (Jersey Chamber of Commerce)

"Yes, sex discrimination law in Jersey should be based in the broadly the same circumstances as race discrimination law. There should be separate protected  characteristics  in  relation  to  sex,  pregnancy  and  maternity  and transgender and sexual orientation." (Unite the Union)

Thirty-three other respondents commented generally in support of introducing protection against sex discrimination, including the following comments –

"In order for Jersey to provide protection on the basis of sex in line with other developed nations and to also enable the States to implement long overdue pregnancy and maternity and family friendly legislation." (Jersey Community Relations Trust)

"If Jersey is to be able to hold itself out as a reputable jurisdiction with which to do business, it needs to have basic forms of protection for employees, which fundamentally go to human rights. Discriminatory practises on the grounds of sex are, sadly, part of the fabric of society in the Island and in the business community and it is about time that were addressed."  (Wendy Lambert, employer/lawyer)

"Failure to provide similar protection on the grounds of sex as we have for race may result in employers choosing to not employ women on the grounds that maternity/family provisions legislation may be required at some point during their employment." (JACS)

There were also a number of responses indicating qualified support for this protection, including –

"Yes but and it's a big but. It is going to be a nightmare for employers being taken to court on spurious claims. Whereas I am sure there will be legitimate claims those which are not or cannot be proved will cost employers dearly.

THERE MUST be a clause whereby a claimant takes financial responsibility for an incorrect or unproven claim." (Anonymous)

"Yes so long as it does not interfere with the running of a lawful business. Example I would not like a member of staff wearing a chador." (Anonymous)

"However, what is outlined above is not SEX discrimination but GENDER discrimination. Unless an employer asks to see all his employees naked, they cannot  discriminate  on  the  grounds  of  SEX!  Please  get  this  right. Discrimination  between  men  and  women  is  GENDER  discrimination. Discrimination  between  male  and  female  is  SEX  discrimination." (Anonymous employee)

"The definition of "sex" as a protected characteristic expanded to include persons of a non-binary gender." (Trans* Jersey[1])

A number of respondents commented in opposition to the Minister's proposal that discrimination based on sex should be unlawful in broadly the same circumstances that the Discrimination Law makes it unlawful to discriminate on the grounds of race, including the following –

"Whilst I have ticked No' I have done so only because I believe that there are a number of areas that should be excluded and I therefore cannot accept the broadly' view." (Anonymous individual, retired)

"There are certain jobs more suited to a particular gender." (Anonymous)

Outcomes

There is clearly overwhelming support for extending the Discrimination Law to cover sex as a protected characteristic. The Minister notes the concerns that Trans* Jersey has about the language used and he will ensure that the Law is drafted so that the definition of sex' is appropriate and wide enough, for example, to include gender' rather than being limited to biological sex, and to include persons of a non-binary gender.

It is worth noting that even some of those who answered no' to the question were simply concerned that there should be appropriate exceptions made (dealt with in questions 12 to 20 below) or who felt that the UK approach was better (although the particular respects in which the UK approach was better were not explained).

EQUAL PAY

2. Respondents were asked if the issue of pay and other terms and conditions should be dealt with as an issue of discrimination (as itis with race) rather than as a separate provision dealing specifically with equal pay (as in the UK).

Of the 144 responses to this question, 81% of respondents agreed that pay and other terms and conditions should be dealt with as an issue of sex discrimination, and 19% disagreed.

Comments from those respondents who agreed that pay should be dealt with simply as an issue of sex discrimination, rather than as a separate equal pay issue, included the following –

"Unite agrees that the issue of pay and other terms and conditions are better dealt with as an issue of discrimination rather than as a separate provision dealing specifically with equal pay. The experience in the UK is that equal pay employment tribunal claims are complicated and lengthy. Avoiding the requirement to establish whether jobs are of equal value would result in a simpler employment tribunal procedure which would be better understood by both employees and employers." (Unite the Union)

"This is a sensible approach and avoids much of the complexity found in UK law. Applying the same rules to race also affords ethically sound protection against detriment on the grounds of race that UK residents currently don't enjoy." (Anonymous hospitality employer)

"Using Guernsey as the comparator to the UK Equality act, dealing with pay and other T&C issues under discrimination seems timelier and cost effective." (Anonymous employee)

"It would be less burdensome and simpler for both employer and employee to deal with pay and terms if dealt with consistently across all the protected characteristics." (JACS)

A number of respondents agreed with the proposed approach, but had reservations about the level of compensation that would be available in respect of pay related Tribunal claims –

"There is no need to overly complicate the issue with separate legislation, my only reservation to this relates to the current extremely low cap of £10,000 on the financial award for breach of the Discrimination Law. If the equal pay award is capped in the same way, this is hardly compensating individuals who succeed in a claim." (Wendy Lambert, employer/lawyer)

"I do not feel that the compensation offered through the Employment and Discrimination Tribunal is enough. Like the UK, claims based on equal pay should result, if successful, in the claimant being entitled to an award of back pay going back up to six years. However, I do appreciate that the process is complicated and lengthy. As such, I am not suggesting we adopt a separate provision dealing with equal pay, but cannot accept the proposal based on the

compensation values indicated. However, unlike the UK I do not think it is necessary to for claims of 'compensation for injury to feelings' to have an unrestricted cap. In this instance, the compensation figures to be enforced by the  Employment  and  Discrimination  Tribunal  seem  appropriate." (Anonymous employee)

Comments from respondents who felt that pay and other terms and conditions should be  dealt  with  as  a  separate  equal  pay  issue  (as  in  the  UK),  rather  than  a  sex discrimination issue, included the following –

"Equal pay should have its own provisions because it specifically deals with terms  and  conditions  and  contractual  issues  providing  longer  periods  of protection. There is no equivalent in other forms of discrimination to gender stereotyping. In the UK spite of c.40 years of EqPA, there are still huge disparities  in  pay."  (Linda  Sohawon,  Legal  Officer,  trade  union/staff association)

"The  UK  Equality  Act  approach  is  far  better.  The  Minister's  suggested approach does not properly address the risk of indirect discrimination and will make it almost impossible for genuine cases to be proved by the claimant. The Minister's approach appears to be window dressing and does not tackle the real, everyday sex discrimination taking place in Jersey." (Anonymous employee)

"Chamber believes the following points need to be considered: The £10,000 could be a deterrent to claiming If there is no EPA, it is not clear what the rules should be. This could create more issues as no specifics/measures are in place  Have  this  as  one  now,  with  scope  for  phasing  later  The  proposed legislation puts the onus on the Employee to prove discrimination. The EPA shifts this to the Employer." (Jersey Chamber of Commerce)

"Equal pay should be adequate to deal with any discrepancy in pay awards – it is what it says on the tin, and so much clearer than if it was to be referred to as a sex discrimination issue." (CIPD Jersey Group)

"The proposal to deal with equal pay issues simply by way of a discrimination claim does not in our view address the likely causes of pay inequality other than  in  instances  of  direct  or  indirect  discrimination.  It  does  nothing  to address more structural issues in equal pay – in particular it does nothing to encourage  employers  to  identify  and  address  instances  of  pay  inequality. More fundamentally, under the Jersey proposal, there is likely to be no way that a woman will be able to base a claim on the basis that the work which she is  undertaking  is of  equal  value  to that  of  a  man  she  will  be limited  to comparators undertaking work that is either similar or identical to that which she undertakes. Additionally, a single claim for up to £10,000 is unlikely to adequately compensate women for what may be several years of unequal pay – and there is no obvious manner in which employers might be compelled to correct imbalances going forward. The implication of a sex equality clause in our view achieves an appropriate basis for compensation and provides a clear  "roadmap"  for  employers  to  achieve  gender  pay  equality  going forward The Consultation Document notes that ratifying CEDAW is a key reason  for  the  introduction  of  sex  discrimination  legislation  in  Jersey.

CEDAW provides at Article 11 that "States Parties shall take all appropriate measures  to  eliminate  discrimination  against  women  in  the  field  of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings;" including ensuring (at Article 11(d)): "(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work". It is at least arguable that unless there is provision for an equal pay remedy which permits women to make a claim based on work of equal value, then  Jersey  will  not  be  compliant  with  CEDAW."  (Huw  Thomas,  Carey Olsen)4

Outcomes

There is clearly a balance to be struck between dealing explicitly with equal pay for work of equal value, and avoiding too much procedural complexity in the Law. Equal value claims in the UK are notoriously difficult to sustain, and can be extremely time- consuming. The concept of equal value is not straightforward and, even where it is established,  the  employer  can  still  defend  a  claim  by  showing  a  reason  for  the difference in pay. At that point, the question becomes whether that reason is tainted by either direct or indirect sex discrimination.

Huw Thomas raises an important point about compliance with CEDAW. Under the Minister's proposal, the issue of sex discrimination is the key one; the Law would outlaw sex discrimination in relation to pay. UK and EU case law has consistently pointed out that measures addressing equal pay are actually about eliminating sex discrimination. The Minister's proposal is consistent with that aim.

Whilst £10,000 is some way off the potential sums that can be awarded in the UK where there is no statutory maximum, it is not clear from the responses why up to £10,000 is considered to an adequate remedy where differences in pay are tainted by race discrimination, but not in the case of sex discrimination.

A limit of £10,000 compensation will not provide an adequate remedy against sex discrimination in some cases. For example, a woman who is denied a six-figure bonus at work and believes that this has something to do with sex may be unlikely to damage her career prospects for an award of up to £10,000. However, if the compensation limit were to be lifted substantially, that would have serious ramifications for the Tribunal system. High-value claims are much more time-consuming and legalistic. One case alone can involve a hearing lasting several weeks. The Minister considers that it is better to allow the system to develop with the compensation limit in place, and review the amount when a clear pattern emerges as to how many cases are being brought and how much Tribunal time they are taking up.

4 See page 5 of the White Paper for more details about CEDAW

3. Respondents were asked what unintended consequences might result if pay  and  other  terms  and  conditions  are  dealt  with as  an  issue  of discrimination  (as  with race)  rather  than  under  a  separate  provision dealing specifically with equal pay.

Comments from respondents included the following –

"Not having an equal pay system could mean that the island does not really address  the  issue  of  lower  paid  "women's  work",  where  there  is  work undertaken primarily by women that should be treated as equivalent to work undertaken primarily by men but which is under-valued. Historic pay issues may need to be addressed, although this would require careful handling in order to avoid putting undue pressure on employers leading to job losses." (Institute of Directors Jersey Branch)

"Our only comment would be – would differences in pay also potentially constitute  discrimination  under  the  forthcoming  age  and  disability discrimination  laws?  The  requirement  for  an  employer  to  demonstrate  a material factor', or a similar mechanism, might be a useful provision to introduce  given  that  experience  and  ability  are  often  arguably  legitimate reasons  for  pay  differences  in  a  way  that  sex  and  race  never  can  be." (Anonymous hospitality employer)

"Chamber believes: There could be a large amount of time required to defend claims. Both Employees and Employers do not know what do, what the rules are, which is particularly important in Jersey as 80% of businesses are SMEs, for example: Is payroll kept?, if so for how long? If not kept cannot defend a claim?" (Jersey Chamber of Commerce)

"It may be difficult to adequately define pay of equal value without the use of comparators." (Jersey Community Relations Trust)

"May be difficult to prove discrimination with no directly comparable posts if, for  example,  only  women  happen  to  be  employed  in  that  role.  In  some circumstances, the lengthy process of establishing comparable but different positions would be worthwhile." (Anonymous, self-employed)

"If there is a separate provision, I feel that the States of Jersey would need to review its public sector pay scale, as it would be very difficult for individuals to find comparators as they are currently set up." (Anonymous employee)

"Classifying equal pay as an issue of discrimination could be somewhat of a minefield. Equality is a personal interpretation in my opinion and each of us will have our own ideas of how that should look." (Anonymous employee)

"It may be harder to prove sex discrimination. Some claims may also reflect both race and sex discriminations where one point may override the other." (Anonymous employer)

Outcomes

It is unavoidable that discrimination will sometimes be difficult to identify and prove. The issue is how best the Law can be structured so that sex discrimination can be addressed. The concerns of the Jersey Chamber of Commerce demonstrate a need for the  rules  to  be  clearly  set  out,  with  appropriate  guidance  to  accompany  them. However, one reason that employers and employees do not know what the rules currently are is that they have not been drafted yet.

The retention of payroll records is a matter of evidence like any other. The Minister does not intend to bring forward any of the bureaucratic rules on pay reporting or gender pay audits that are being introduced in the UK. A lack of evidence about how employees were paid in the past is as likely to hinder a claimant in establishing their claim as it is to hinder a respondent in defending the claim.

In deciding whether or not discrimination has taken place, the Tribunal is still likely to use comparators where appropriate. However, they will be of evidential value rather than being a technical requirement of the Law. The UK's Equality Act introduced an – as yet untested – provision allowing an equal pay claim to proceed as a discrimination claim where no comparator is available (Section 71). Under the Jersey Law, claimants and respondents will still be able to point to the way in which comparators are treated, to make their case about the presence or absence of discrimination. The better the comparison, the more compelling the evidence will be. However, the Tribunal will not get bogged down in whether the comparator is technically valid or not.

PREGNANCY AND MATERNITY

4. Respondents  were  asked  if  discrimination  based  on  pregnancy  and maternity should be unlawful in broadly the same circumstances that the Discrimination Law makes it unlawful to discriminate on the grounds of race.

Of the 130 responses to this question, 88% of respondents agreed that discrimination based  on  pregnancy  and  maternity  should  be  unlawful  in  broadly  the  same circumstances that the Discrimination Law makes it unlawful to discriminate on the grounds of race, and 12% did not agree.

Comments from those respondents who agreed that pregnancy and maternity' should be a protected characteristic included the following –

"As  the  "white  paper"  states  pregnancy  and  maternity  are  "unique"  to women.  The  States  of  Jersey  should  follow  the  UK  example  of  having  a protected characteristic of pregnancy and maternity. This would provide for legislation  that  makes  it  clear  to  both  employees  and  employers  that discriminatory  treatment  of  pregnant  women  and  issues  related  to  their maternity, such as maternity leave and sickness absence due to pregnancy, are covered by the legislation." (Unite the Union)

"The right not to suffer a detriment should be at the root of all discrimination issues, and the failure to reduce potential detriments' could lead to even fewer women in the higher quartile of jobs, which was raised as a concerning factor during the recent CRT conference held this year." (JACS)

"I completely agree: a law against sex discrimination will not be effective if it does not also protect against discrimination based on pregnancy and the direct consequences of pregnancy such as absence from work, or the taking of maternity leave." (Anonymous employee)

"As detailed in the white paper, only women can become pregnant so this should not be used a reason not to progress, develop and invest in women due to the time off work they require in order to have a child / children. This is perhaps  one  of  the  more  difficult  elements  to  improve  upon  as  many employers  /  managers  still  see  time  out  of  the  workplace  for  maternity purposes as making a choice between work and family, when it should be made possible for women to have both." (Anonymous employee)

Comments from those respondents who did not agree that pregnancy and maternity' should be introduced as a protected characteristic, included the following –

"Because pregnancy is a choice whereas race or sexual discrimination is not." (Anonymous employer)

"Many employers cannot afford to have pregnant women as employees as they  would  necessarily  require  some  special  treatment."  (Anonymous employee)

"Pregnancy and maternity have special status under EU law without the need for  a  comparator."  (Linda  Sohawon,  Legal  Officer,  trade  union/staff association)

A  number  of  respondents  took  this  opportunity  to  comment  on  the  Minister's proposals for family-friendly rights. Some of those comments are set out on page 51. In addition, the Jersey Childcare Trust commented as follows –

"It would be helpful if the "protected period" as defined in any law on the topic that takes effect in Jersey, also extends to cover any conditions that might lead to absences of either parent (at any time) that directly relate to the pregnancy or the giving birth experience etc." (Jersey Child Care Trust)

Outcomes

There is clearly wide support for a protected characteristic relating to pregnancy and childbirth.

The Jersey Child Care Trust is right to raise the issue of a protected period during which absences related to pregnancy should be given special status. In the UK, the protected  period  starts  when  the  woman  becomes  pregnant  and  ends  when  her maternity leave ends, or when she returns to work if that is earlier. If the woman does not have the right to maternity leave (e.g. if she is not an employee), the protected period ends 2 weeks after child-birth. It would be impractical to make the protected period  open-ended.  Unfavorable  treatment  after  that  time  might  still  be  sex discrimination in any case. The Minister will consider what protected period might be appropriate during the law drafting.

5. Respondents  were  asked  if  there  are  any  circumstances  in which discrimination based on pregnancy or maternity should be permitted.

Of the 122 responses to this question, 39% of respondents said that there are some circumstances in which discrimination based on pregnancy or maternity should be permitted.  Sixty-one  percent  of  the  respondents  said  that  there  are  no  such circumstances.

Comments from respondents who said that there are some circumstances in which discrimination based on pregnancy or maternity should be permitted included the following –

"The UK position that any less favourable treatment can only constitute direct sex discrimination is not always entirely fair to businesses. We believe that some discrimination' may sometimes be a proportionate means of achieving a legitimate aim, e.g. where health and safety concerns override concerns of discrimination;  where  there  is  a  serious  detrimental  impact  on service/business  performance;  where  there  is  some  kind  of  genuine requirement for an employee not to be absent on maternity leave (as per the example of an employer recruiting for a temporary contract used in the White

Paper). It would be sensible for Jersey to specifically provide for claims of indirect sex discrimination." (Anonymous hospitality employer)

"If recruiting someone to fill a post to undertake work on such a project there may  be  circumstances  in  which  an  employer  should  be  allowed  to  ask someone whether they expect to have to take time off because of an operation, for other medical or family-related reasons and not give someone the job if they confirm that they will have to take such time off. Where the reason for the time off is e.g. pregnancy potentially this would be direct sex discrimination, but it could be legitimate from the perspective of the needs of the business." (Institute of Directors Jersey Branch)

"Employment: recruitment for FTCs in later trimesters. Any short/temporary roles for immediate start in later trimester." (Anonymous employee)

"Employers should not be placed in situations where they must either unfairly discriminate or expose the employee/business to risk – this is lose/lose. The 2/3rd rules regarding FTCs has yet to pose any real issues, however if using an FTC for short-term cover/role an early ending of this (whether for genuine reasons or otherwise) may result in a discrimination claim along with an unfair dismissal one." (JACS)

"Chamber  believes  the  following  points  should  be  considered:  Size  of Employer to drive recruitment process, allowing and exemption if under a certain  size  Burden –  operational  and  financial  Jersey  has  more  small businesses Health and Safety comes first." (Jersey Chamber of Commerce)

"Perhaps in the recruitment process. I think if you know you are pregnant you must be required to declare that situation. It is unfair to employers if they recruit  you  and  then  you  need  leave  within  a  certain  time  frame." (Anonymous)

"I take issue with persons not disclosing pregnancy at the onset of starting a position. Although they are not legally obliged to disclose a pregnancy, I believe  there  should  be  clause  to  protect  the  financial  interests  of  the organisation." (Katherine McAleer, trade union/staff association)

Five respondents suggested circumstances relating to the size of the business including the following comment –

"Although perhaps unwise to phrase it as permitted discrimination', some allowance needs to be made for small companies as per above – if you employ a team of 3, one goes on maternity leave and you are required to hold their job open, it can cause serious problems!" (Mr. M.P. Chatterley, employer)

Fifteen respondents specifically referred to circumstances relating to health and safety, including the following comments –

"Employers should be permitted to exclude pregnant (or recently pregnant women)  from  the  workplace  on  health  and  safety  grounds  (although  this should be carefully limited)." (Huw Thomas, Carey Olsen)

"Roles  that  may  carry  a  higher  risk  during  pregnancy  e.g.  hazardous environments where chemicals are used, or roles that include heavy lifting that could cause injury – general health and safety concerns." (JACS)

"Health and safety related reasons should override issues of discrimination where pregnant women are concerned." (CIPD Jersey Group)

Five respondents suggested circumstances relating an employee's ability to do her job, including the following comment –

"Where a woman is pregnant and her job entails heavy physical activity, such as being a firefighter, it might be appropriate for her employers to vary her role and her hours for a period during her pregnancy. This might be seen by colleagues as discriminatory (favouring the pregnant employee) but, equally could be seen by the woman, as discriminatory as she is being removed from duties she may enjoy/feel capable of carrying out." (Anonymous employee)

Comments  from  respondents  who  said  that  there  are  no  circumstances  in  which discrimination based on pregnancy or maternity should be permitted included the following –

"Unite does not believe that there should be any circumstances where an employer can directly discriminate on grounds of pregnancy, maternity leave, or maternity related issues. The States of Jersey should follow the UK example of not allowing an employer to justify direct discrimination on grounds of sex, pregnancy and maternity. The EU Treatment Directive 2006/54 – Article 2 is clear that the pregnancy and maternity are covered by the Equal Treatment Directive 2006. Unite does not believe a provision of not being able to justify discrimination on grounds of pregnancy and maternity would place an unfair burden on employers. This has not been the experience in the UK where employers  have  benefited  by  retaining  experienced  and  skilled  women workers." (Unite the Union)

Outcomes

This is one of the more difficult policy decisions, and there are arguments on both sides.  If  an  exception  for  short  employment  contracts  is  included,  it  should  be limited –  as  the  IoD  suggests –  to  cases  where  an  employer  is  recruiting  for  a particular project and the employee's likely absence on maternity leave at a crucial time makes it reasonable to refuse her the job. An exception would not be appropriate where  there  is  a  long-term  or  permanent  job  available  because  pregnancy  and maternity leave are short-term conditions.

The IoD makes a valid point that a particular decision may be justified in common- sense terms, but would technically fall foul of the Law. This often makes employers feel uneasy, and it is important that the business community can support the Law. The size of the business should not in itself be a consideration; what matters is whether the situation is one in which most people would feel that the discrimination would be lawful.

It is proposed that any exception should –

• apply to all businesses
• be confined to recruitment decisions (i.e. not allowing for lower pay or other detriment on the grounds of pregnancy)
• apply where the recruitment is for a fixed term and where the employer does not anticipate the term being renewed when completed
• allow discrimination where an individual applies for a job, but her likely absence on maternity leave means that it is reasonable for the employer to conclude that she is not the best applicant for the job.

This would allow an employer to refuse a fixed-term contract to a pregnant woman only if the employer is acting reasonably in concluding that her absence means that she is not the best candidate. It would not allow an employer to artificially specify that a contract should be for a fixed term in order to exclude pregnant applicants, as the employer would need to believe that there will be no renewal of the contract.

The Law would have to make it clear that the employer would have to reasonably believe that the claimant was pregnant at the time of the selection. It should not be lawful  to  refuse  to  recruit  a  woman  because  she  might  be  planning  to  become pregnant.

As noted by JACS and the CIPD Jersey Group, consideration will also need to be given to health and safety issues; for example, where a risk assessment indicates that a pregnant woman should not be allowed to do particular work. Further research may be needed to determine the best way to address this. In such circumstances in the UK, a woman must either be suspended on full pay or given suitable alternative work to do, but  the  provisions are  complicated.  However,  this situation is  relatively  rare  and usually involves work with hazardous chemicals. It is different from a situation in which the woman is simply unfit to work because of a complication arising from pregnancy.

6. Respondents were asked if there are any businesses or service providers that should have the right, in certain circumstances, to discriminate on the grounds that a woman is breastfeeding a baby.

Of the 126 responses to this question, 14% of respondents said that there are some circumstances  in  which  businesses  or  service  providers  should  have  the  right  to discriminate on the grounds that a woman is breastfeeding a baby. Eighty-six percent of  the  respondents  said  that  there  are  no  circumstances  in  which  this  should  be permitted.

Those respondents who said that there are no circumstances in which businesses or service providers should have the right to discriminate on the grounds that a woman is breastfeeding a baby commented on the importance of breastfeeding and encouraging mothers to breastfeed, including the following comments –

"Unite does not support any circumstances where a business, service provider or employer should have the right to discriminate against a woman because she is breastfeeding a baby. This is detrimental to both the health and well- being of the mother and the baby. Employers should be required to provide

somewhere  for  pregnant  and  breastfeeding  employees  to  rest.  Where necessary, this should include somewhere for them to lie down. Employers should  provide  a  private,  healthy  and  safe  environment  for  employees  to express and store milk. I would recommend referring to the UK's Health and Safety Executive for guidance and best practice in this area."  (Unite the Union)

"No, the States of Jersey should be encouraging women to breastfeed, and protecting  women  who  choose  to  do  so.  Breastfeeding  mothers  right  to breastfeed should be protected, with employers required to provide space and time for women to breastfeed or express breastmilk, as well as adequate storage facilities for expressed milk." (Anonymous employee)

"No – as long as it is reasonably practical to all. Chamber believes that the following points should be considered: Do not create a legal requirement on employers to provide specific facility. Health and Safety guidance should be followed in relation to reasonable provision so long as it doesn't breach the law." (Jersey Chamber of Commerce)

"None. In my experience most women choose to breastfeed discreetly and breaks should be accommodated where babies are allowed in the workplace although this should not impede the ability to perform the role." (Anonymous employer)

Comments from respondents who said that there are some circumstances in which businesses or service providers should have the right to discriminate on the grounds that a woman is breastfeeding a baby included the following –

"It would seem sensible for the law to specify a maximum period of time in which breastfeeding women are protected, based on medical advice on the benefits  to  the  child,  to  ensure  legal  protection  cannot  continue  for  an unreasonably long period." (Anonymous hospitality employer)

"ONLY on grounds of health safety – unless suitable (safe) facilities will be a requirement of the legislation." (JACS)

"If a woman choses to breastfeed their baby employers should provide a suitable area for her to express, especially as they could be returning to the workplace two weeks after giving birth. Not providing such an area may have a direct effect on the choice they make to return to the workplace at all after and is a clear barrier to removing the glass ceiling." (Anonymous employer)

"Where it may offend others e.g. public spaces." (Anonymous employer)

"Anywhere food is sold for consumption on the premises or where there may be health and safety issues for both the clientelle, employees or the mother and / or child." (Anonymous citizen)

"Where the breastfeeding woman is on business premises, and the business does not wish her to breastfeed, she should be asked to cease breastfeeding or leave until she has finished. If she refuses, then the business should be entitled to refuse service for the time being." (Anonymous employee)

"Our starting point is that a woman should never be discriminated against because  she  is  breastfeeding  a  baby.  However,  there  are  likely  to  be circumstances in which it could be difficult for a business or service provider to provide the support, resources or flexibility that a breast-feeding mother might require. A small office might not be able to provide a room other than a toilet in which a working mother could privately express milk. A breastfeeding mother might want to feed her child herself at certain times of the day but this might not be compatible with the mother's working hours or the needs of the business. If a business is likely to face penalties if it does not enable breast- feeding arrangements this is going to deter businesses from employing women who might wish to breast-feed and this could be very counter-productive. Businesses, as well as individuals, should know who to turn to for support on these issues – there should be a free, public point of contact." (Institute of Directors Jersey Branch)

Other relevant comments included the following –

"We  would  note  that  the  UK  treats  breastfeeding  in  the  workplace  as primarily a health and safety issue. In terms of imposing positive duties upon employers, this may be a better mechanism than the inclusion of specific protection under sex discrimination laws. An alternative to appropriate health safety provision may be the imposition of an obligation upon workplaces and commercial  premises  to  make  reasonable  adjustments  to  accommodate breastfeeding women." (Huw Thomas, Carey Olsen)

Outcomes

The Equality Act specifically outlaws discrimination by service providers based on the fact that a customer is breastfeeding a baby and there is no reason why the same rule should not apply in Jersey.

A  number  of  the  respondents  interpreted  the  question  as  relating  to  rights  for employees in the workplace. To summarise the current position, the Employment Forum  recommended[2]  that  special  provisions  for  breastfeeding  mothers  would  be excessive in legislation and noted there is no employment legislation in the UK or Isle of Man giving breastfeeding mothers specific rights in the workplace. The Forum recommended that guidance should outline what should reasonably be provided by an employer, taking into account the recommendations of the World Health Organisation. A Jersey health and safety code of practice exists which obliges employers to risk- assess  breastfeeding  mothers  who  work  with  ionising  radiation,  the  principles  of which would be expected to be applied more widely in risky occupations. Any risks relating to pregnancy and breastfeeding would generally be covered in any workplace risk  assessment.  At  the  request  of  the  Minister  for  Health  and  Social  Services, breastfeeding rights in the workplace are likely to be considered as part of the 2016 review of the family-friendly rights.

SEXUAL ORIENTATION

7. Respondents were asked if discrimination based on sexual orientation should be unlawful in broadly the same circumstances that the Discrimination Law makes it unlawful to discriminate on the grounds of race.

Of the 123 responses to this question, 94% agreed that discrimination based on sexual orientation should be unlawful in broadly the same circumstances that the Discrimination Law makes it unlawful to discriminate on the grounds of race, and 6% disagreed.

Twenty-nine respondents commented generally in support of protection against discrimination on grounds of sexual orientation, including the following comments –

"IoD members involved in the consultation discussion were unanimous in agreeing that discrimination on the ground of a person's sexuality should be prohibited. It was felt that a person being heterosexual, lesbian, gay or bisexual should not be relevant to most areas of life (such as work) as it was a private matter for that person." (Institute of Directors Jersey Branch)

"The States of Jersey should follow the UK example of having a protected characteristic for sexual orientation and Unite agrees that this should be enacted at the same time as the sex discrimination legislation." (Unite the Union)

"Chamber believes that it should be treated as the same." (Jersey Chamber of Commerce)

"Yes, as a gay woman I feel the need for this to protect against any potential discrimination. It gives reassurance that services are not going to be denied just because who we share our lives with. Such as rental accommodation protection that the land lord couldn't evict you because they didn't approve of your sexuality." (Anonymous employee)

"We would endorse the proposal that sexual orientation discrimination be outlawed. The only note of caution which we would sound is that race discrimination is to be outlawed in September 2014; sex discrimination will then follow in September 2015. The addition of what amounts to another protected characteristic is perhaps expecting a lot of employers to deal with in a very short time frame." (Huw Thomas, Carey Olsen)

"Failure to  not  afford  similar/same protection  is  likely to  create  divides. Furthermore sex discrimination should not be seen as a women's law' as it has been elsewhere. To not address discrimination on the grounds of sexuality at this stage will only create the need to re-visit at some point as it is likely to be inconsistent and out of step with societal expectations." (JACS)

"Society has generally moved on from racial discrimination but prejudice against gay people is still socially acceptable to many, not least certain religions. Legislative protection on this point is arguably more vital than the

other  protected  characteristics  because,  generally,  society  recognises  the other forms of discrimination are not acceptable (although they do still occur, often on an unconscious/indirect level) – Discrimination on the grounds of sexuality is direct, conscious and visible – the introduction of this law would make a clear statement that this sort of discrimination is not acceptable in Jersey." (Anonymous employee)

Of those who did not agree that discrimination based on sexual orientation should be unlawful in broadly the same circumstances that the Discrimination Law makes it unlawful  to  discriminate  on  the  grounds  of  race,  one  respondent  commented  as follows –

"Both hoteliers and their guests are entitled to a high degree of freedom of choice. Hoteliers should be free to restrict their guests in more or less any way they wish, providing the restrictions are clearly stated in any and all advertising materials. Hopefully, hoteliers that apply discriminatory rules will lose the custom of all prospective clients who dislike discrimination, whether it affect them directly or not." (Derek Bernard, individual)

Outcomes

There is overwhelming support for this proposal. It makes sense to protect sexual orientation at the same time as sex and gender re-assignment, because the issue is straightforward and requires little special drafting. There is no need to introduce it separately. The argument for freedom of choice for service providers is an argument that is contrary to any protection against discrimination.

8. Respondents were asked if there are any businesses or service providers that should have the right, in certain circumstances, to discriminate on the grounds of sexual orientation.

Of  the  123 responses  to  this  question,  13%  felt  that,  in  certain  circumstances, businesses or service providers should have the right to discriminate on the grounds of sexual orientation. Eighty-seven percent disagreed.

A number of respondents commented in support of a right to discriminate on the grounds  of  sexual  orientation  in  certain  circumstances,  including  the  following comments relating to religious circumstances –

"IoD does not accept that discrimination on the grounds of sexual orientation is acceptable. However, it takes the view that in some respects a government has to recognise: – an element of freedom of choice (e.g. where there is a conflict  between  issues  relating  to  sexual  orientation  and  religion,  as recognised by the White Paper); and – different generational attitudes/social standards. It was felt that people were entitled to make their own religious choices and it was believed that some religions might be unable to accept a practising homosexual in a certain role. Tolerance was believed to be key, including  tolerance  for  the  religious  beliefs  of  others.  Having  said  that,

extremism in any form was likely to create difficulties and there would have to be a cut-off point somewhere along the line. It was also felt that this was a complex area in relation to care (e.g. nursing care). While none of the IoD members felt that racist or homophobic behaviour was acceptable, it was acknowledged that some people had older family members with strong views that  were  unacceptable  to  a  younger  generation.  To  an extent  a  level of pragmatism – as well as tolerance – has to be adopted. Businesses providing carers might need to select carers for patients taking into account the wishes and/or prejudices of the patients." (Institute of Directors Jersey Branch)

"The only exceptions should be churches and equivalent places of religious observance. Even then, the exception should cover only religious services and the employment of clergy (or equivalent); churches should not be permitted to otherwise  discriminate  either  in  the  provision  of  services  or  in  the workplace." (Huw Thomas, Carey Olsen)

"Recruitment to a role which is for the purposes of an organised religion. Club and associations that are aimed at providing benefits for members of a particular sex." (CIPD Jersey Group)

"Religious  only.  And  I  am  not  religious  but  if  the  faith  or  belief  of  an establishment held those views then I don't think it's fair to force them to change  the  goal  posts  or  have  beliefs  if  the  state  imposed  on  them." (Anonymous employee)

"The right of religious organisations to refuse a service on the grounds of sexuality is made clear in European law and extends only to the religious organisation not its adherents. Religious organisations are therefore exempt from  claims  arising  from  discrimination  on  the  grounds  of  sexuality  but individuals  are  not.  Any  new  law  in  Jersey  should  follow  this  model." (Anonymous employee)

Comments from the respondents who did not agree that any businesses or service providers should have a right to discriminate on the grounds of sexual orientation in certain circumstances included the following –

"There should be no circumstances where it is permissible for an employer to justify direct discrimination because of the sexual orientation of a worker. It is possible to include a genuine occupational requirement in the legislation, but Unite would suggest reference is made to R (on the application of Amicus – MSF section) v Secretary of State for Trade and Industry which concluded that the exception for a genuine occupational requirement is very narrow in its scope in relation to religion." (Unite the Union)

"To allow organisations, religious or otherwise, to persecute against sexual orientation  is  only  strengthening  prejudices.  To  do  so  is  unjust  and  out- dated." (Anonymous employer)

"Service providers should not have the right to discriminate against their customers in any circumstances. Employers should have the right only where there is a genuine occupational requirement, e.g. where a person of a specific

sexual  orientation  is  required  for  objectively  justifiable  reasons." (Anonymous hospitality employer)

"If your business provides a service to the public then it should have to abide by the law. If a person has religious objections to gay people then they should either stay out of providing services to the public, keep their objections to themselves, or limit provision of their service to fully accredited members of their religion (until we outlaw religious discrimination too)." (Anonymous employee)

"I  cannot  think  of  an  example  where  this  would  be  acceptable.  Even  in relation to certain groups / charities where it may be that only people of a certain sexual orientation can attend / register, I think it's important to make these available to all as it's often the people not in these groups who require the education." (Anonymous employee)

"Government has a responsibility not only for its individual citizens but also for the associations of its individuals. Thus, government can and should be involved in shaping public opinion. To permit religious groups to discriminate on the grounds of sexual orientation is to tacitly permit others to discriminate on the same grounds. A carve-out for religious beliefs therefore perpetuates the harmful ideologies which the legislation seeks to limit."  (Anonymous employee)

"This  area  of  discrimination  has  no  validity.  It  is  only  people  with controversial opinions and these should not be allowed to affect others. Any kind  of  exemption  is  only  justifying  ignorance  and  belittling  people  for something  that  concerns  them  and  no  one  else  really."  (Anonymous employer)

Outcomes

It is clear that there is little support for a widespread exception for businesses or service providers to discriminate on the grounds of sexual orientation. The concerns expressed by the IoD are examples of the sort of behaviour that a Discrimination Law is intended to challenge.

Paragraphs 13 and 14 provide further comments relating to religious-based exceptions.

GENDER RE-ASSIGNMENT

9. Respondents were asked if discrimination based on gender re-assignment should  be  unlawful  in broadly  the  same  circumstances  that  the Discrimination Law makes it unlawful to discriminate on the grounds of race.

Of the 124 responses to this question, 88% agreed that discrimination based on gender re-assignment  should  be  unlawful  in  broadly  the  same  circumstances  that  the Discrimination Law makes it unlawful to discriminate on the grounds of race.

Twelve percent of respondents did not agree that discrimination based on gender re-assignment  should  be  unlawful  in  broadly  the  same  circumstances  that  the Discrimination Law makes it unlawful to discriminate on the grounds of race. Their comments included the following –

"Chamber believes that the following points should be considered: Time off for procedure – generally this would not be sick leave, unless psychologically disabled. Care should be exercised in respect of the wording in terms of "process complete" as it is unlikely that it is never complete albeit surgery may be." (Jersey Chamber of Commerce)

"Wait for people to be comfortable with the idea, many would not be I think." (Anonymous)

"I believe is it a choice so that people feel more comfortable with themselves, much like plastic surgery." (Anonymous employer)

"Government should keep its social engineering to an absolute minimum. Its focus should be on putting its own house in order by ensuring that those electing gender reassignment are not discriminated against by government." (Derek Bernard, individual)

Comments  in  support  of  protection  against  discrimination  on  grounds  of  gender re-assignment included the following –

"With the Gender Reassignment Law already in place in Jersey, there has been  a  number  of  birth  re-registrations  of  Jersey-born  people  who  have successfully changed gender." (Superintendent Registrar, Sue Groves)

"Transgender  people  deserve  the  same  protection  as  everyone  else." (Anonymous employee)

"I am a transgender woman so I'm a little more involved in this than most but trans  people  are  among  the  most  vulnerable  protected  characteristic enshrined  within  UK law,  this  group  has the highest suicide  rate  of  any minority, they have been proven to be discriminated against much more than the LG&B' in LGBT. They are also much more likely to be discriminated against in the workplace so it is incredibly important this should be made into law." (Sarah Savage, employee)

"I  was  diagnosed  with  Gender  Dysphoria  as  a  result  I  was  twice  made redundant from the work place." (Ms Deborah Samantha Dors)

"The States of Jersey should follow the UK example of having a protected characteristic for gender reassignment and this should be enacted at the same time as the sex discrimination legislation. The legislation should make it clear that  a  person  has  the  protected  characteristic  of  gender  reassignment regardless of whether the person has started, or completed, the process of changing gender. Although, agreeing with the consultation that transgender people are vulnerable to harassment, it should be noted that transgender people can experience less overt discrimination in employment in other ways, such as being denied recruitment and promotion." (Unite the Union)

"Jersey has an opportunity to bring in model legislation that advances the current position of trans* people within British law. Trans* Jersey offers a solution to the problems it sees as arising from the proposals put forward in the  white  paper  in  order  that  Jersey  can  implement  legislation  that encompasses the broad spectrum of human gender identity." (Trans* Jersey)

Outcomes

There is clearly widespread support for including gender re-assignment as a protected characteristic. There is also a general lack of awareness about transgender issues and the particular challenges faced by transgender people, both in the workplace and in relation to the provision of goods and services.

The  Minister  is  particularly  grateful  for  the  very  thorough  response  provided  by Trans* Jersey, both in writing and in person. The full written response is available on the Trans* Jersey website[3]. The detailed comments will be taken into account in drafting the Regulations, especially in relation to defining this protected characteristic.

10. Respondents  were  asked  if  there  are  any  circumstances  in which discrimination based on gender re-assignment should be permitted.

Of the 120 responses to this question, 11% felt that there are certain circumstances in which discrimination on the grounds of gender re-assignment should be permitted. Eighty-nine percent disagreed.

Comments  in  support  of  a  right  to  discriminate  on  the  grounds  of  gender re-assignment in certain circumstances including the following –

"A business with an employee or a client going through transition may face challenges, both in relation to the wishes of the individual concerned and potentially those of others with whom they would engage. A business will have to be allowed to make its own decisions on matters which could arise in relation to: the toilets that someone would be expected to use; in a care

business deciding which member of staff should work for which patient; in a security business, deciding who should conduct physical searches; or within an  office  or  public-facing  environment,  deciding  how  some  client  contact should best be managed." (Institute of Directors Jersey Branch)

"Yes – employers should have the right only where there is a genuine occupational requirement, e.g. where for objectively justifiable reasons a trans or non-trans male or female is required."  (Anonymous hospitality employer)

"When during the period of transition where working in support roles i.e. Women's Refuge etc." (Anonymous employee)

"Some health care workers may not be able to do their job if they have changed sex as the person in their care may necessarily demand either a male/female carer." (Anonymous employee)

Comments opposing a right to discriminate on the grounds of gender re-assignment included the following –

"There should be no circumstances where it is permissible for an employer to justify direct discrimination against a transgender worker. As stated above it is possible to include a genuine occupational requirement in the legislation, with the provision that it should be very narrow in scope. The TUC has excellent guidance on LGBT Equality at Work which would provide useful reference when drafting the legislation and providing guidance to employees and employers." (Unite the Union)

"Most people transitioning will be aware of any issues with shared gender facilities and how people who are not so aware may act, and be mindful if thought it need be. But hopefully most people will not be immediately aware or bothered because it should not be a big issue for people." (Anonymous employee)

"There are no logical circumstances in which this could be relevant apart from prejudice." (Anonymous citizen)

"If you are providing a public service, you have no right to discriminate against anyone. I think you mean gender confirmation, not gender reassignment." (Anonymous employee)

"There seems to be issues surrounding things like toilet / changing facilities during transition periods however I don't think these should be highlighted as exceptions as we need to protect people who are going through this, not make it acceptable to treat them differently. Whether it's transition period or not, people should be treated as the sex they aspire to be."  (Anonymous employee)

"Absolutely not. I'm a trans woman and I was lucky enough to be protected by a law like this in the UK when I was fleeing domestic violence. Thanks to the anti-discrimination law I was saved from being street homeless by a place in a Women's Refuge and the support from the people who helped me there. This is

a prime example why a persons assumed gender identity HAS to be respected. I was born male but identified as female and had taken serious steps toward living as female thus I was afforded the same protections as a female under equality  laws.  There  should  be  no  circumstances  where  discrimination happens." (Sarah Savage, employee)

"There are no circumstances in normal daily life when someone's gender should result in discrimination. As someone who is trans, your consultation wording concerns me. Talking about exceptions to discrimination in "the provision of communal changing facilities or shared accommodation" feeds into a common misconception about trans people. This is exactly the situation in which most trans people encounter discrimination! It absolutely should NOT be exempted." (Anonymous employee)

"There is no requirement to have any exemptions for transgender individuals, other than those provided for the characteristic of "sex". Trans employees should  be  subject  only  to  the  same  exemptions  for  genuine  occupational requirements as natal born men, women and those persons of a non-binary gender." (Trans* Jersey)

"Cisgender women, particularly, seem to be concerned that they might be faced with a pre-op transwoman in changing facilities, which might cause them  embarrassment  or  awkwardness.  Firstly, it  is  highly  unusual  to  see someone's  genitals  in  public  facilities.  Most  people,  transgender  people included, are discreet. Furthermore, the overpowering aim of transgender people is to pass as their preferred gender. They are, therefore, less likely to expose themselves than cisgender individuals." (Trans* Jersey)

Outcomes

These are sensitive and difficult issues. Trans* Jersey makes a valid point about the groundless fear of being confronted with the physical features of a transgender person in a communal changing area or in toilet facilities, and a widespread exception in this area would clearly undermine the protection that the Law is intended to provide.

In particular it is clearly important, for example, that a transwoman at risk of domestic violence is able to use the women's refuge. Further consultation with stakeholders is likely  to  be  required  in  order  to  determine  whether  some  limited  exceptions  are needed, for example in relation to competitive sports.

MARRIAGE AND CIVIL PARTNERSHIP

11. Respondents were asked if discrimination based on marriage and civil partnership should be unlawful in broadly the same circumstances that the Discrimination Law makes it unlawful to discriminate on the grounds of race.

Of the 111 responses to this question, 84% felt that discrimination based on marriage and civil partnership should be unlawful in broadly the same circumstances that the Discrimination Law makes it unlawful to discriminate on the grounds of race, and 16% disagreed.

There were 8 general comments in support of protection against discrimination on grounds of marriage and civil partnership; for example, on the grounds that everyone should be equally protected. The following 2 specific reasons were also given for including marriage and civil partnership as a protected characteristic –

"Unite  believes  that  discrimination  at  work  based  on  marriage  and  civil partnership should be introduced by the States of Jersey. We do not consider there  will  be  adequate  protection  provided  by  the  enactment  of  sex discrimination legislation. We believe it is particularly important in respect of civil  partnership  which  has  only  recently  become  law  in  Jersey.  The introduction of this in the UK has not led to a significant number of tribunal cases so we do not believe it will be a burden on employers for the States of Jersey  to  include  a  protected  characteristic  based  on  marriage  and  civil partnership." (Unite the Union)

"I  don't  agree  with  the  Minister  that  this  will  be  covered  by  sex discrimination. Jersey is a very old fashioned society. The assumption is: if you are a married woman, you will want children and it's just a matter of time. If it isn't separately dealt with, there is a danger that the tribunal when looking at claims and comparing with the UK case law, will have lawyers endeavouring to exclude the claim on the basis that the Jersey statute, by its omission, intends not to cover discrimination on the ground marital status." (Wendy Lambert, employer/Lawyer)

A  number  of  respondents  commented  in  support  of  the  Minister's  position,  that marriage  and  civil  partnership  should  not  be  included  as  a  separate  protected characteristic, including the following –

"I agree that there should be no need to provide for a separate protected characteristic relating to one's civil status but I would want to ensure that it works both ways. There should equally be no disadvantage to single people or to couples who are not married or in a civil partnership. Some couples who come to arrange their weddings with us indicate that they feel their lives in Jersey  would  be  easier –  bureaucratically  and  administratively –  if  they marry." (Superintendent Registrar, Sue Groves)

"I can't see any practical application for this provision. Discrimination on the grounds of marriage or civil partnership is not a widespread issue in Jersey." (Anonymous employee)

"I do not feel this is an issue. Being married, being in a civil partnership or being  single  is  NOT,  unlike  gender  or  sexual  orientation,  an  inherent characteristic." (Anonymous)

"Changes in society have meant that marriage is no longer the defining' statement of family/household and many people choose other paths such as living together, civil partnerships or choosing to remain single, therefore to afford protection specifically for marital status' is out of kilter with society, and therefore gives greater protection to one sector in society over another." (JACS)

"The UK provision is a hangover from when women used to be sacked when they got married. It is not an issue now and can be dealt with via protection against gender & orientation discrimination." (Anonymous employee)

"If you are going to protect marriage and civil partnerships specifically, then you need to protect co-habiting couples, which becomes difficult to define. And, then, why should single people not be protected under the law? Marriage is a choice, just like being single is a choice." (Anonymous employee)

"Action against discrimination would be likely to be able to pursued under other parts of the Law." (Anonymous individual)

A number of respondents took the opportunity to comment that marriage and civil partnerships should be treated equally and that same-sex marriage should be available in Jersey for equality reasons.

Outcomes

The Minister stated in the White Paper that he did not think that marriage and civil partnership should be covered as a separate protected characteristic. However, there was overwhelming support in the consultation for the inclusion of this as a separate characteristic (84% in favour). Only 2 comments were provided to explain why this might be necessary (other than a general desire for equality).

The concerns raised about the treatment of married woman are examples of direct sex discrimination. If an employer treats married women differently from married men, then that will be unlawful sex discrimination. There are circumstances in which an employer might be concerned about whether 2 employees are in a relationship as this could give rise to concerns about favouritism or other difficulties. For example, in the Police Force there may be a difficulty with a person making decisions about sending his or her partner into a potentially dangerous situation. What matters, however, is usually the fact and nature of the relationship rather than any concern about marriage per se. In making judgments of this kind, it is important that the employer does not make assumptions based on sex. It would clearly be wrong and unlawful to apply one rule to women who are married, and another to men.

It will be important, however, to make provision in the Discrimination Law so that civil partnerships are treated as equal to marriage in the context of discrimination. In other words, it should not be lawful to discriminate against a same-sex couple in a

civil partnership on the grounds that they are not married. A similar provision to Section 23(3) of the Equality Act is likely to be necessary. What is required in the Law will depend to some extent on the outcome of the Chief Minister's current consultation on same-sex marriage.

12. Respondents who agreed that discrimination based on marriage and civil partnership should be unlawful were asked if there are any circumstances in which discrimination based on marriage and civil partnership should be permitted.

Of the 91 responses to this question, 8% agreed that there are certain circumstances in which discrimination on the grounds of marriage and civil partnership should be permitted. Ninety-two percent disagreed.

Three respondents commented in support of a right to discriminate on the grounds of marriage and civil partnership in circumstances relating to religion, one respondent commenting –

"The only exceptions should be churches and equivalent places of religious observance. Even then, the exception should cover only religious services and the employment of clergy (or equivalent); churches should not be permitted to otherwise  discriminate  either  in  the  provision  of  services  or  in  the workplace." (Huw Thomas, Carey Olsen)

Comments  from  other  respondents  in  relation  to  whether  there  are  certain circumstances  in  which  discrimination  on  the  grounds  of  marriage  and  civil partnership should be permitted included the following –

"Yes and no. Chamber believes that the UK Equality Act should be followed. ECHR signed up to should sit in that." (Jersey Chamber of Commerce)

"If people in partnership of any kind are employed in positions of authority within the same state department, then discrimination should be permitted as nepotism is itself a form of discrimination and may be counter to the interests of the workforce as a whole. Discrimination in this respect should not be automatic, but any persons with such a common interest should be required by law to declare it and it should be subject to review." (Anonymous citizen)

"It is difficult to envisage a genuine aim that could be achieved through unequal treatment on these grounds." (Anonymous hospitality employer)

EXCEPTIONS

Exceptions set out the circumstances in which an act will not be treated as a prohibited act of discrimination. The Discrimination Law currently includes general' exceptions that will apply to all protected characteristics and exceptions that are specific to certain protected characteristics. The general exceptions relate to –

- Acts done to comply with a Law or an Order of a Court or Tribunal, and

- Acts done to comply with the law of another country.

Exceptions that relate specifically to race discrimination include –

- Selection of people of a specified nationality for national sports teams.

- Clubs  and  associations  where  their  essential  character  is  to  provide benefits to a particular racial group (unless identified by colour).

- Where a person of a particular race is crucial for the job. This is likely to be very rare in the case of race (e.g. out-reach work), but less rare in the case of sex (e.g. jobs requiring intimate care or shared accommodation).

It is proposed to include exceptions similar to those found in the Equality Act that will, for example, allow for single-sex schools.

RELIGION

13. Respondents  were  asked  if  an  exception  should  be  provided  for recruitment to a role which isfor the purposes of an organised religion, as is currently provided in the Equality Act.

Of the 112 responses to this question, 30% of respondents agreed that an exception should be provided for recruitment to a role which is for the purposes of an organised religion, and 70% disagreed.

There were some general comments in support of an exception for recruitment to a role which is for the purposes of an organised religion, including the following –

"It  is  possible  to  include  a  genuine  occupational  requirement  in  the legislation in respect to recruitment to a role which is for the purposes of an organised religion, but as previously stated, Unite would suggest reference is made to R (on the application of Amicus – MSF section) v Secretary of State for Trade and Industry which concluded that the exception for a genuine occupational requirement on the basis of religion is very narrow in its scope." (Unite the Union)

"The only exceptions should be churches and equivalent places of religious observance. Even then, the exception should cover only religious services and the employment of clergy (or equivalent); churches should not be permitted to otherwise  discriminate  either  in  the  provision  of  services  or  in  the workplace." (Huw Thomas, Carey Olsen)

"Teachers or workers working for a religious organisation." (Anonymous employee)

"Same  sex  religious  orders;  services  offered –  e.g.  hospital/education." (JACS)

"As long as it is central to the religion not to accept. employment of religious mentor should be covered as it's central to the religion. But for example a nurse or health care assistant at a religious care home or a teacher in a religious school shouldn't matter about the person's private life/sexuality. Just on ability to do role." (Anonymous employee)

"It is clear that there are religions where gender roles are very specific and I do think we need to make allowances for this. I do know of an example in the UK when it was highlighted that there was a high percentage of Muslim women being diagnosed in a certain part of the UK and after researching the issue, it became apparent that they did not feel they could go to a male doctor for gynaecological issues. An advert was then placed for a female, Muslim, Gynaecologist  in  that  area  which  in  turn  reduced  the  amount  of  cancer diagnosis as women were encouraged and felt comfortable being assessed sooner. Although quite a specific example, I think it would be beneficial to make  allowances  such  as  this,  should  the  need  arise."  (Anonymous employee)

"Employees of churches should hold the same religion as their employer or have no specific religion otherwise they may not be able to give the correct perspective to church members." (Anonymous employee)

"This works and keeps the religious organisations happy so, although I wish there was no need to exempt anyone, I guess we should follow suit in Jersey." (Anonymous employee)

"The JCCT would expect the Minister to follow England on this matter." (Jersey Child Care Trust)

There were a number of comments opposing an exception for recruitment to a role which is for the purposes of an organised religion, including the following –

"Jersey is a secular government with secular laws and everyone should be subject to them. I expect that concessions will be made for religions but this is fundamentally wrong – it means that what people think and feel (due to their beliefs) is put above who people are (because of the way they are born). Religion is powerful and will use its power to threaten and influence and I expect the Minister and the States will bow to this pressure. But in doing so both must recognise that they are putting religion above secular which is not how our laws and government are set up." (Anonymous employee)

"In  a  fairly  secular  society  more  people  could  be  offended  with  this discrimination than in favour of it. Although it's a mind-set that will be hard to convince, religious people should not be given the right to discriminate against  others.  These  exemptions  just  add  to  sexist,  racist  and  duped attitudes." (Anonymous employer)

"The UK Equality Act also contains provisions for the protection of people from discrimination on the grounds of their religion or belief. Without similar protection in Jersey, any exception would be placing the views and practices of organised religions outside of and above the law of the state." (Anonymous hospitality employer)

"Religion is the principal reason this discrimination currently exists, as an institution  it  should  be  provided  with  no  special  exceptions."  (James Woodhead, employee)

"There should be no exceptions for religion, which is a minority interest that must conform to secular society. Organised religion should be viewed as any other business and any articles of faith contrary to the standards of society should be regarded as anti-social and illegal. Where religion is practised in private, this would not be relevant." (Anonymous citizen)

"I  was  employed  by  a  company  who  were  Methodist  but  they  made  me redundant after 3 years because I "came out". An employee should not be sacked just because he/she has "come out" and for a difference of gender/ sexuality or religious convictions." (Ms Deborah Samantha Dors)

"I suspect this one will get through to appease religious groups but why should religion allow you to treat someone unfairly." (Anonymous employee)

"Religion should not be a vehicle to sustain discrimination." (Anonymous)

Outcomes

The recruitment and appointment of clergy cannot be overlooked, and it is likely that the Law would not want to intervene in a debate about gay priests, for example. For this reason, the Minister would support a narrow exception, as suggested by Unite the Union, for recruitment to a role which is for the purposes of an organised religion. A similar provision to Schedule 9(2) of the Equality Act should be included.

14. Respondents  were  asked  if  any  other  exceptions  relating  to  religion should be provided for acts of discrimination on the grounds of sex.

Of the 100 responses to this question, 96% of respondents said that no other religion- related exceptions should be included for acts of sex discrimination, and 4% said that other  religion-related  exceptions  should  be  included.  One  relevant  exception  was suggested relating to religion –

"A  mosque  or synagogue  may  wish to  segregate male/female  attendees." (Institute of Directors Jersey Branch)

Outcomes

It is acknowledged that some religions organise worship and activities differently for different genders. The Equality Act includes a specific exception in Schedule 3(29) which provides that the segregation of attendees at a place of worship is not an act of sex discrimination. The Minister has considered whether it might be appropriate to include exceptions for religious services that are specifically aimed at one gender, and has  concluded  that  he  cannot  endorse  segregation  in  worship  by  providing  an exception in the Law.

Segregation on the basis of race is less favourable treatment, which means that it is direct discrimination that cannot be justified (see Article 6 of the Discrimination Law). Without an equivalent provision for sex discrimination, it would be up to any potential claimant to show that segregation amounted to less favourable treatment. This would be a question for the Tribunal to determine taking into account all of the circumstances of the case.

The Minister notes that a range of religious groups in Jersey were specifically invited to respond to this Consultation, but did not take the opportunity to do so. There will be a further opportunity at the law drafting stage if religious groups wish to explain to the Minister why an exception might be appropriate.

MATERNITY PAY

15. Respondents were asked if an exception should be provided so that an employer who meets the statutory obligations in relation to maternity leave and pay is not subject to a complaint of sex discrimination if the maternity  pay  is  lower  than  the  amount  that  would  be  available  to another employee who was on sick leave.

Of the 98 responses to this question, 72% of respondents said that an exception should not be included in relation to maternity pay, and 28% said that an exception should be made.

The preamble to the question explained that the purpose of the proposed exception is so that an employer who meets any statutory obligations in relation to maternity leave and pay would not be subject to a complaint of sex discrimination if their policy is to provide employees with, for example, a greater contractual entitlement to sick pay, e.g. full pay for up to 26 weeks. The comments indicate that many respondents were concerned about the unfairness of such a position, including –

"I cannot see a legitimate reason why maternity leave pay should be less than sick leave (for the period of time the employer choses to pay over and above the statutory requirement of 2 weeks)." (Anonymous employee)

"This is disgraceful! Why should a person on sick leave receive more money than a mother on maternity leave? I am outraged by this suggestion, this is absolutely direct discrimination and I am very disappointed by this proposal. It may have an unintended consequence that mothers choose to go on sick leave rather than maternity leave as they would get more money that way." (Anonymous employee)

"No. The proposal's omission of any statutory rate of maternity pay gives employers carte blanche to pay women at rates that could effectively force them back into work at the end of the two-week period of full pay. This is not in keeping with the spirit of a law that is meant to protect new mothers from detriment. Our view is that employers should be compelled to at least pay rates  equivalent  to  sick  pay,  but  that  a  statutory  minimum  would  be preferable." (Anonymous hospitality employer)

"A  woman  on  Maternity  Leave  should  not  be  treated  differently  by  an employer where contractual sick pay is higher than contractual maternity pay. They  should  be  treated  equally."  (Linda  Sohawon,  Legal  Officer,  trade union/staff association)

"This would presumably encourage employers to pay a lower (potentially much lower) wage in this type of scenario. It discourages women from taking maternity leave and therefore is discriminatory. If Jersey wants women in the workforce (which is should) it must make it easier for them to do so. Women who become pregnant and want to take maternity leave, who are paid a lower wage during a certain length of this time, will either put off getting pregnant (and this will cause further problems for the health system later) or simply leave the workplace all together unless they are in highly paid jobs making it worth it." (Anonymous)

"Maternity pay should not be lower than any other pay – and withholding pay until an employee has returned for a minimum term should be unlawful." (Anonymous employee)

A number of respondents commented in support of an exception relating to the level of contractual maternity pay, including the following –

"An  employer  who  meets  statutory  obligations  should  not  run  a  risk  of breaching sex discrimination legislation. An employer should be allowed to recoup contractual maternity pay if an employee leaves within a set period of time, even if that employer would not recoup sick pay – this should be a matter for an employer's discretion." (Institute of Directors Jersey Branch)

"As it would be unfair to compare maternity and sickness and may well end up creating issues. A female employee who is off sick would be paid at the same level as a male employee off sick." (JACS)

"Chamber believes that the following should be considered: The statutory requirement would have been met therefore there should be no claim Sick pay is the same for men and women therefore not a comparator It is maternity not sick  leave.  The  only  comparator  could  be  another  women  in  another organisation." (Jersey Chamber of Commerce)

"Maternity isn't sickness and shouldn't be treated as such." (Wendy Lambert, employer/lawyer)

"As  long  as  statutory  obligations  are  met,  surely  the  behaviour  of  the employer is correct? Maternity is (by definition) NOT the same as an absence of illness. There may be a separate argument that the statutory obligations are inadequate, however!" (Mr. M.P. Chatterley, employer)

"The  JCCT  wouldn't  compare  sick  and  maternity  leave.  As  long  as  the statutory  responsibilities  are  met  by  the  Employer,  then  their  contractual responsibilities are seen as separate." (Jersey Child Care Trust)

"Yes – although we would generally be of the view that such an exception should be unnecessary; maternity is not a form of sickness and maternity absence should not be equated to sickness absence." (Huw Thomas, Carey Olsen)

"I think if an employer is meeting the statutory obligations as set out in legislation then I'm not sure it is fair to then be subject to a complaint of sex discrimination if different contractual terms apply for sickness. However the lack of SMP raises the question, of how fair it is to possibly have a male employee on sick leave receiving more pay than a female on maternity, this could lead to increased sickness absence rates in females who have given birth,  therefore  possibly  effecting  their  opportunities  for  promotion  or progression due to high absence levels." (Anonymous employer)

"It is established in UK case law that pregnancy cannot be compared with sickness  (Todd  v  Eastern  Health  and  Social  Services  Board,  Gillespie  v Northern Health and Social Services Board (No. 2). Additionally, pregnant women have special protection and when in receipt of maternity pay cannot be compared with that of a man or woman at work (Clark v Secretary State of Employment). Therefore, it would not be appropriate for the above exception to be included in the legislation because of women's unique position during pregnancy and maternity leave." (Unite the Union)

Outcomes

Whilst  the  comments  indicate  that  many  respondents  were  concerned  about  the perceived  unfairness  of  the  proposed  exception,  the  underlying  principle  of  the proposal is that maternity cannot be equated with sickness. On that basis, it makes sense to prevent any argument that by failing to provide for maternity pay equivalent to  sick  pay,  an  employer  is  discriminating.  Without  such  a  rule,  the  principle established in the proposals for family-friendly legislation[4], i.e. that maternity leave is unpaid, would be undermined.

POSITIVE ACTION

16. Respondents were asked if an exception should be provided to permit positive action where men or women are under-represented in a particular role.

Of the 103 responses to this question, 61% of respondents said that an exception should be included to permit positive action, and 39% said that an exception should not be included.

This and the proposed exception for charities to provide benefits to people who share the same protected characteristic (see question 18), were the only 2 proposed exceptions that more than half of the respondents supported overall. Comments from respondents who supported such an exception included –

"The JCRT agrees that it is unlikely that significant progress will be made to address the under representation of women in politics and senior leadership without positive action measures. The Davis report (UK) sets out an aspirational target of 25% of women at Board level within Business which we do not believe is being achieved within Jersey. Additionally, currently the States Assembly has only 23% of women so for these reasons the JCRT recommends positive action provisions are included in the proposed sex discrimination legislation. However, recruitment, selection and promotion in employment should be made on the basis of merit. Selection should not be made via positive discrimination (as set out in your question above). Under UK legislation there is clear distinction between positive action and positive discrimination as set out in section 158 and 159 of the Equality Act 2010 (UK)." (Jersey Community Relations Trust)

"I believe for a period of time, Jersey may need to adopt positive action measures (women are vastly under-represented). However, I do not feel that this should be taken lightly and if implemented should only be permitted for a period of time. Positive action remedies need to be reviewed and revised over time." (Anonymous employee)

"I don't believe there should be quotas in order to increase representation in certain roles, however we are very far away from equal leadership / executive roles for men and women so I do think that some positive action is needed to bridge the gap. Things like women in wealth' or other women's initiatives in the work place should be able to exist and on occasion, the products provided should be available to women only." (Anonymous employee)

"Whilst such an exception is superficially attractive, the likelihood of its practical application must be extremely limited. We would take the view that positive action (as opposed to positive discrimination) should be permitted on the same basis as under the UK Equality Act 2010 save in relation to so called "tie-breaker" questions." (Huw Thomas, Carey Olsen)

"Unite argues that positive action should form part of Discrimination Law for all protected characteristics and it should not be restricted to gender. "Positive action" in respect of employment is not "positive discrimination", it means action can be taken by an employer to encourage people from under-

represented  groups  to  apply for jobs  and  promotion.  Examples  would  be Leadership Courses for women at work and advertising jobs in Black, Asian and Ethnic Minority communities. As stated in the "white paper" the UK Equality  Act  2010  does  allow  for  someone  from  an  under-representative group to be appointed to a post if they are equally qualified as another candidate for all protected characteristics. In the UK positive action has proven to be successful, for example, the Labour Party has increased the number of women Members of Parliament through women only shortlists. If the legislation is restricted to "positive action" only for gender it will have a very limited impact on making progress on equality in the Channel Islands." (Unite the Union)

The Institute of Directors Jersey Branch was in favour of positive discrimination but commented –

"However there were some reservations about this. A business should be able to select the right person for the job and for the business. There should be no implicit  expectation  that  a  business  will  apply  positive  discrimination principles where men or woman are under-represented in a particular role. Businesses  should  be  entitled  to  get  on  and  run  their  businesses  without excessive government interference."

Comments from respondents who were opposed to an exception that would permit positive action included the following –

"People should have a job purely on merit I don't agree with people gaining a job due to lack of a person of a certain sex or colour or sexual orientation, etc., etc." (Lisa Wallser)

"Because candidates should be the best for the job. Positive discrimination is another form of discrimination that perpetuates unfair decision making that as a society we need to move away from and move to judgements based solely on ability." (Anonymous employee)

"No-one wants to go into a job feeling they've just been chosen for their sex or any other irrelevant criteria. E.g. there are plenty of capable women out there who could take on Directorships but people go with who they know so choose from the same pool." (Anonymous employee)

"Positive discrimination is as bad as negative discrimination. You don't beat discrimination by discriminating against a different class of people. Merit should be the only thing that determines selection." (Anonymous employee)

"There  shouldn't  be  any  exceptions  in  appointing  to  a  role  other  than ensuring  the  person  appointed  is  suitably  qualified  and  experienced  and capable of doing the work required." (Anonymous employee)

"This will just be used as an excuse to continue to discriminate by valuing the skills of one party more highly than the skills of another. It may also result in one  party  being  restricted  from  attaining  the  required  qualifications  to exclude them from the position." (Anonymous, Managing director of a trust company)

"Calling  it  "positive  action"  is  very  misleading.  It  is  "positive discrimination", which, as the name states, is discrimination nonetheless. If it's OK to discriminate against a group because they are the majority, then a truly  worrying  double  standard  is  being  proposed."  (Mr. M.P. Chatterley, employer)