Disability Discrimination Regulations: Consultation Summary of Responses.

STATES OF JERSEY

DISABILITY DISCRIMINATION REGULATIONS: CONSULTATION SUMMARY OF RESPONSES

Presented to the States on 30th January 2018 by the Minister for Social Security

STATES GREFFE

2018  R.10

Law to protect against Disability Discrimination Summary of consultation responses:

The Minister for Social Security (the Minister') consulted on the proposed scope of protection against discrimination on grounds of disability and the draft Disability Discrimination Regulations[1]. The Minister invited comments from stakeholders on a number of policy issues including the following;

1. how we should define disability' for the purpose of this law
2. whether any exceptions should be made
3. requiring reasonable adjustments to premises

The proposals were generally supported by respondents. It is clear that there is widespread support for the overall approach taken in the draft Regulations. There are also aspects of the draft that can be simplified or improved. More information is provided in this consultation outcomes report.

Minister/department response to this feedback:  

The Minister is very grateful to those who responded to this consultation. The Minister has considered the comments submitted by each respondent and this  process  has  informed  her  decisions.  The  draft  Regulations  will  be amended to include the following changes -

1. To expressly provide that a long-term' impairment is one which has lasted or is expected to last for at least six months
2. To ensure that disfigurements are treated as a disability
3. To remove the unnecessary provision specifying that cancer, MS and HIV/Aids are to be treated as disabilities
4. In considering whether reasonable adjustments have been made, the Tribunal will be asked to consider the extent to which the need for a particular adjustment could have been anticipated
5. To make  an  exception  to  ensure  that  States  policies  to  improve employment opportunities and access to services for disabled people can be acted upon.

The draft Regulations will be lodged by 6 February 2018 for States debate on 20 March 2018. The Minister intends that, subject to the States Assembly approving the draft Regulations, protection against disability discrimination will be available from 1 September 2018 and a duty to make reasonable adjustments to premises will apply from 1 September 2020.

CONSULTATION OUTCOMES

Members of the public were invited to give their views on the scope of the protection against disability discrimination, as set out in the draft Regulations. The  Minister  had  not  reached  any  firm  policy  decisions  prior  to  the consultation, but decided that it would be helpful to circulate draft Regulations to  help  stakeholders  consider  the  proposals.  The  consultation  paper[2] provided  information  about  the  framework  of  the  current  Discrimination (Jersey) Law 2013, legislation in other jurisdictions and the policy issues for consideration.   Section  2  of  this  report  sets  out  the  responses  to  the consultation in more detail.

Section 1 - Consultation method

The Minister issued a consultation paper on 4 September 2017 inviting respondents to complete the online survey, send written comments or attend a stakeholder meeting. The Minister received 101 written responses to the consultation. In addition, the response submitted by Law at Work presented the views collected from 31 clients of Law at Work and the response from the Jersey  Chamber  of  Commerce  represented  the  views  of  46  Chamber members. Although these respondents  completed different surveys,  178 written responses in total were submitted as part of this consultation. The responses can be categorised into the following respondent types;

In addition to this, more than 70 stakeholders attended a number of public and private meetings on 23, 24 and 30 October 2017 to discuss the issues raised in the consultation paper. This included representatives  from the Jersey  Disability  Partnership,  EyeCan,  Oxygen,  Shopmobility,  Jersey Employment Trust, Liberate, the Jersey Parent Forum, States of Jersey Planning  and  Property  Holdings  departments,  Jersey  Advisory  and Conciliation  Service,  Citizens  Advice  Jersey,  CIPD  Jersey  Branch  and representatives from local Law firms, architects and financial services. Some of  the  stakeholders  who  attended  a  meeting  also  submitted  a  written response.

The Minister is very grateful for the detailed comments that have been provided by the respondents and for the efforts that have been made to collect the  views  of  certain  groups  in  the  community.  Some  of  the  responses represented the views of more than one individual, including the following;

Jersey Disability Partnership (JDP) – The views presented reflect points raised at a JDP meeting and the disability discrimination briefing sessions that were attended by JDP Committee members, and the views of the JDP Committee, all of whom are closely involved in one or more disability charities and have campaigned for protection against disability discrimination.

Jersey  Chamber  of  Commerce  (Chamber)  -  Chamber  is  the  largest employer representative body in the Island which includes members from all business sectors who are dedicated to the promotion of trade, commerce and the general prosperity of Jersey. Chamber circulated its own survey to all of its member organisations.

Law at Work (LAW) – LAW is a provider of employment relations consultancy services to Channel Island based employers. LAW acts for employers and primarily represents their views and concerns in responding. Recipients of the LAW e-bulletin were sent a survey to which 31 employers responded.

Unite the Union (Unite) - Unite is the UK's largest trade union with 1.4 million members across the private and public sectors. The union's members work in a range of industries including all the manufacturing and transport sectors, financial services, print, media, construction, local government, education, health and not for profit sectors. Unite is Jersey's biggest union.

Guernsey Disability Alliance (GDA) - The GDA was formed in 2008 and is a collective voice for individual disabled islanders in Guernsey, their family members and more than 40 member charities. The GDA's mission is equality of opportunity for disabled islanders and carers in Guernsey and to change how Guernsey thinks about disability.

dDeaf  individuals  as  a  group  using  British  Sign  Language  –  With assistance from the Senior Practitioner with dDeaf and Hard of Hearing People, dDeaf individuals submitted their views as a group using British Sign Language to discuss and provide collective comments.

Section 2 - Consultation responses  

The specific issues for consultation were described in the preamble to each set of questions in the consultation 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.

Any  references  to  the  Regulations  in  the  following  report  refer  to  the Regulation and paragraph numbers that were set out in the consultation draft of the Discrimination (Disability) (Jersey) Regulations 201-[3].

General comments

A number of respondents commented generally in support of introducing protection against disability discrimination, including the following comments;

"The Jersey Chamber of Commerce is fully supportive of Jersey having a full scope of disability legislative measures in place, to ensure that everyone in the island has fair and full access to employment and social  activities."  (Lorna  Pestana,  Chair,  HR  Committee,  Jersey Chamber of Commerce)

"The  introduction  of  legislation  to  protect  against  disability discrimination is undoubtedly a positive step in terms of addressing inequality in the Island. As set out in the Disability Strategy for Jersey, given that at least 51% of Islanders aged 85 or over are disabled, with this number expected to rise, it is important that there is some form of legislation in place to protect against this form of discrimination and we thoroughly support this initiative." (Law firm)

"I would like to congratulate you, on behalf of the many charities that we work with, for a draft law and consultation document that, generally, are easy to understand, address almost all of the points we have campaigned for in this law, and are appropriate and proportionate to Jersey. We are also delighted that there is now every chance that this law will be adopted by the States before the next election." (Jersey Disability Partnership)

"The Strategic Housing Unit support the proposed extension of the Discrimination (Jersey) Law 2013 to protect people against disability discrimination. The proposed legislation supports the aim of the 2016 Housing Strategy, which states that all people in Jersey should have access to affordable, good standard and secure accommodation. The Strategic Housing Unit believes that the proposed legislation will help to  clarify  the  obligations  of  landlords  in  respect  of  tenants  with disabilities, including helping to prevent discriminative letting policies and practices." (Strategic Housing Unit)

Outcomes

The Minister is pleased that the legislation was generally supported. The gradual implementation of the Discrimination Law has been a success in Jersey and its extension to the protected characteristic of disability is an important  step forward. While  some  changes  will  be  made  to  the  draft Regulations to ensure maximum clarity and that they achieve their intended purpose,  the  broad  thrust  of  the  Regulations  as  proposed  will  remain unchanged.

1. The definition of disability

Respondents were asked if they agree with proposed definition of disability. The draft Regulations amend Schedule 1 of the Discrimination Law to insert disability' as a new protected characteristic. In considering what definition of disability should be included in the legislation, we considered the UK Equality Act definition which is complex and is a medical model that focusses on the medical effect of the condition.

We also considered other approaches, including the UN Convention on the rights of people with disabilities which focusses instead on the way that the individual  interacts  with  barriers  that  are  put  in  their  way.  Our  draft Regulations draw from the Convention approach as much as possible and tries to avoid the complexity of the Equality Act.

Of the responses to the Minister's survey, 91 percent of respondents agreed with the proposed definition. The written responses and the public meetings provided much discussion about the advantages and disadvantages of taking a medical approach or a social approach to the definition. Comments on our proposed approach included the following;

"JET welcomes and fully supports the definition of disability used. It is particularly important that it embraces the social model as opposed to the medical model of disability. The medical model looks at what is wrong' with the person and not what the person needs. It creates low expectations and can lead to people losing independence, choice and control in their own lives. The social model of disability placed the responsibility  on  the  way  society  is  organised,  rather  than  by  a person's impairment or difference. It does not seek to change persons with impairment to accommodate society It looks at ways of removing barriers  that  restrict  life  choices  for  disabled  people."  (Jersey Employment Trust)

"By being a wide definition (not labelling individual and / or diversity of individual experience of dDeaf, hearing impairment or sight / hearing impaired or deafblind) it is tactful and sensitiveDeafness has cultural and  linguistic  /  communication  difference  that  is  not  always appreciated."  (dDeaf  individuals  as  a  group  using  British  Sign Language)

"I would prefer the law to take into account the wider UN definition...the social model should be included as much as the medical model. I would not want my daughter to be defined by her disability only. I would like to see Jersey appreciate the capabilities of our young people whilst acknowledging their right to participate fully in island life. I believe the UN definition of disability would better address these requirements." (Lesley Bratch)

"Unite agrees that the UK Equality Act definition is flawed in that it is complex to apply and that it is in effect a "medical model". We accept that the definition in the UN Convention on the rights of people with disabilities is a better base, including the reference to being or likely to be "long term"." (Unite)

"I  agree  that  the  UK  Equality  Act's  definition  has  become  overly complex and that caselaw has not always assisted in that respect. Further, a social model should be adopted, in line with the expectations of  international  human  rights  law  including  the  United  Nations Convention  on  the  Rights  of  Persons  with  Disabilities  and  its application by the European Court of Human Rights, which treats it as reflecting general principles of international law even when a state has not signed and ratified the UNCRPD." (Professor Claire de Than, Institute of Law, Jersey)

"YES, we agree with the definition, although we suggest some points of clarification below. In particular we very much welcome that it is based on the broader UN Convention approach to disability, rather than the narrower UK Equality Act definition, thus combining both a social as well as a medical model of disability. However, we recognise the difficulty of translating the UN Convention approach into a legal definition. 1b. The numbers from the Jersey Disability Survey that fall under the UN definition are some 35,000 rather than 13,900 under the medical model. We think the numbers are important to put the different models/definitions into context." (Jersey Disability Partnership)

"The idea that it is the interaction and/or the experienced barriers for a disabled person will include more effectively dDeaf and hard of hearing / hearing impaired islanders in the definition of disability. It will give weight to the awareness of communication needs and access  to everyday, ordinary, and extraordinary life events and being part of many communities as are hearing people – by interest, choice, and personal, private and public servicesThe definition is also more supportive  of  other  invisible  disabilities  and  hopefully  will  start participation  and  engagement  by  these  groups.  too  often  the stereotype is wheelchair user, guided blind people, noticeable body, or facial difference (including disfigurement)" (Senior Practitioner with dDeaf and hard of Hearing People)

"Your proposing leaving the distinguishing (presumably on a case by case basis?) of what can properly be said to be a disability on the 'common sense' of a Tribunal leaves the burden of not knowing what sense a Tribunal would make of a complex condition unfairly on the person coming to the Tribunal seeking the disabilities recognition. This ambiguity is very likely to dissuade people from seeking the 'common sense' of the Tribunal." (James Deane)

"The definition is more balanced, pragmatic in its application, whilst allowing for a distinction to be made between longer term disabilities and those of a shorter term duration. The UK approach is difficult and complex  to  apply  and  additional  requirements  to  obtain  medical evidence can be detrimental to individuals." (Anonymous employer)

"Definition of disability enables dDeaf, hard of hearing and deafblind people to be recognised not by the label but by the barriers that are created being in a hearing world. Many barriers are linked to access to information and communication. Also barriers that do not recognise that needs are not just about their deafness but the interaction between deaf and hearing worlds." (Member of dDeaf Partnership Board) "The GDA believes that the proposed definition of disability will be confusing and onerous to employers and service providers and will invite misplaced focus and argument, particularly between employer and employee, about who is and who isn't disabled and whether a need, connected with disability, should be accommodated." (Guernsey Disability Alliance)

"LAW is not averse to either a social or medical model so long as there is proportionality in the resulting burden this places upon businesses. LAW itself has always been practical in its advice to those clients (who have already anti-disability discrimination regimes in their workplace) and usually counsels clients to assume anybody who is not well, behaving oddly or asking for help may be suffering from a disability. We advise not wasting time on legal questions and concentrating on the consequences of the impairment or ill health. We would comment, however, that in our view, despite the drafting and purpose of the Regulations, medical evidence will nevertheless come to bear on the question of disability and discrimination both internally and during litigation, and we believe Jersey will nevertheless be running a social- medical model under these Regulations." (Law at Work)

"Not all disabilities are obvious, personally I would not expect my employer to believe me without some sort of assurance." (Response collected by LAW, Finance/Legal).

"It's not perfect asking GPs' medical opinion but it is the best system we have - and unless Jersey is prepared to fund an independent panel who can assess disability consistently." (Response collected by LAW, Charity).

"The definition of disability used within this legislation is based on a social, not medical model. The question of proof of disability could therefore be a subjective and difficult point to prove, as it is unclear at this stage which professional opinions would be necessary in order to correctly assess disability." (Lorna Pestana, Chair, HR Committee, Jersey Chamber of Commerce)

"There has been a serious attempt to draft legislation that reflects a social model of disability, i.e. instead of focusing on the medical effect of the impairment, it focuses on the way that the individual interacts with barriers that hinder their full participation in society. It is not entirely convincing that the draft legislation succeeds in this...a mixture of social and medical models might more properly recognise impairment and disability working together to produce disadvantage. In this, Jersey's draft law succeeds, in as much as the new paragraph 8 defines disability medically and the new Article 7A acknowledges the social  barriers  that  need  to  be  removed  through  the  process  of reasonable adjustment. In defining disability, the question then arises as to how wide the parameters should be set?" (Liberate)

"The Disability Regulations put the Tribunal in the position of making a medical judgment. This approach may lead to maters being appealed to the Royal Court. Until such time as this case law is developed in the Island, it will be difficult to say with any certainty whether a particular condition does constitute disability, albeit that the definition refers to "can adversely  affect"  which  is  a  fairly  wide  test.  This  will  place employers (and advisers) in an unenviable position. In addition, we are of the view that the wider definition will not necessarily disperse of the need to have a preliminary hearing to determine whether the person does fall within the definition of disabled. In practice, it is likely that there  will  be  legal  debate  surrounding  whether  the  definition  is engaged and most employers will want to refer to medical evidence in any event." (Law firm)

"The Equality Act 2010 definition at section 6 of the Act is (whilst undeniably a medically based and complex test) robust and has the benefit of a substantial body of case law in relation to how it should be interpretedThe  UK  definition  also  has  the  additional  benefit  of focusing on the actual impact of a disability on day-to-day activities. Our concern with the proposed Jersey definition is that it focuses on the  potential  impact  of  the  condition  on  activities  caught  by  the Discrimination (Jersey) Law 2013 –not upon the actual impact of a condition  on  an  individual  undertaking  their  ordinary  day  to  day activities. This gives rise to a potential that employees and service users may be denied protection on the basis that there disability does not prevent them from taking up employment or using services but otherwise has a substantial impact on their day-to-day lives." (Huw Thomas, Carey Olsen)

Specific inclusions

As in the UK Equality Act, specific conditions have been proposed to count as  a  disability,  irrespective  of  whether  they  would  otherwise  meet  the definition,  e.g.  Cancer,  Multiple  Sclerosis  and  HIV/AIDS.  A  number  of respondents commented on this, both at the public meetings and in writing, including the following comments;

"I agree with the principle as per paragraph "8 Disability", but suggest that an autism spectrum diagnosis might also be specified under 8 (4), since this is irreversible and can give rise to unfair discrimination - e.g. in the workplace - if reasonable allowances are not made." (Paul St John Turner)

"I would like to see chronic conditions such as M.E. and fibromyalgia included in the definition. These chronic conditions, while not life threatening,  cause  considerable  hardship  and  are  debilitating." (Anonymous individual)

"Respondent also  feel  strongly  against  the  automatic  deeming  of specific conditions as a disability – this was considered arbitrary and the preference expressed was for each alleged disability to be judged on its own merits in light of the general statutory definition." (Law at Work)

"The draft Regulations specifically include certain conditions: cancer, HIV and multiple sclerosis, yet there are scores of other chronic and progressive conditions which are not automatically included. Such exclusions and inclusions tend to invite employers to first decide, when considering  whether  to  make  a  reasonable  adjustment,  whether someone  fits  a  list  of  excluded  or  included  conditions  or  a  legal definition of disability, rather than to first decide whether it would be reasonable to accommodate a need." (Guernsey Disability Alliance)

"We would also strongly suggest that the list of "deemed" conditions is extended to take account of: • Blindness, severe sight impairment, sight impairment and partial sightedness (provided this is certified by a  consultant  ophthalmologist)  •  Severe  disfigurements,  with  the exception of unremoved tattoos and piercings." (Huw Thomas, Carey Olsen)

"Severe disfigurement – in the Uk it has been added that this does not include tattoos and piercings." (Jersey Employment Trust)

"If the definition is to remain as drafted, we are of the view that the specific references to cancer, multiple sclerosis and HIV at Article 8 (4) may not be necessary as the definition is wide enough such that is captures these conditions. All of these conditions can adversely affect a person's ability to engage or participate in any activity." (Law firm)

Long-term

Under the definition as drafted, for a condition to amount to a disability it must be long-term'. This was discussed in some detail at the public meetings and a number of respondents commented on this requirement in writing, including the following comments;

"Within the UK definition of disability, long-term' is defined as 12 months. There is no timeframe laid out in the Jersey legislation. We suggest it would be sensible to include a timescale that clearly defines what  the  States  of  Jersey  consider  is  long-term...Over  90%  of respondents urge Jersey to pre-define long-term', providing a clear, objective measure." (Lorna Pestana, Chair, HR Committee, Jersey Chamber of Commerce)

"Short Term disabilities must be recognised, a disability is a disability no matter how long it lasts." (Anonymous employer)

"How we define long term is important and mental health issues should be considered. Medically s chronic disorder is 6 months according to pain clinic so maybe an illness longer than 6 months should be long term." (Anonymous employer)

"To define a disability only as long term does not recognise that disabling aspect of mental health illness and those recovering from injuries to say the least. This will hinder the recovery from these states of inability and disable people from living out their full potential." (James Deane)

"It clearly and succinctly sets out what the law is covering and such clarity assists considerably. The only concern would be when does disability discrimination 'kick in'? By way of an example, someone may be unwell and undergoing a series of tests to determine what the illness is, it may only be some 6 months or more down the line that a diagnosis is given that as a consequence means the illness is now long-term. Would the protection only apply once this 'long term' diagnosis was given, or would it effectively mean the protection started when the tests started?" (JACS).

"In the Jersey law, it is also unclear how a relapsing and remitting condition such as rheumatoid arthritis or an episodic condition like epilepsy or depression would qualify as a long-term' disability. The UK is better as the effects of the condition may well be long-term, even though the condition comes in bursts." (Liberate)

"First, three respondents felt workers suffering short-term conditions warranted protection – e.g. "Sight-loss can be temporary" (Eyecan, 10 employees) and It's a disability full stop. Might be a broke leg or MS. The  person  is  still  disabled."  (Anon.,  Wholesale/Retail,  150 employees). Second, the lack of a statutory definition of long-term' gives concern that some individuals with disabilities will fall outside the law's protection. One respondent was concerned that the requirement for long-term' this may result in the very opposite of what was intended i.e. relapsing and remitting conditions not being considered a disability (Anon, Charity, 1 employee), and others warn that individuals who are yet to know their intermittent short-term illnesses are actually the result an underlying long-term condition could lose out." (Law at Work)

"Our view is that disability should be measured on actual (rather than potential) impact on day-to-day activities and that the relevant impact should  be  demonstrably  long-term.  In  our  view,  the  Act  takes  a sensible approach to such matters:

(1) The effect of an impairment is long-term if:

1. it has lasted for at least 12 months,
2. it is likely to last for at least 12 months, or
3. it is likely to last for the rest of the life of the person

affected. (Schedule 1 Part para 2 Equality Act 2010)

Whilst issue may be taken with the time periods utilised in the Act, the general principle is in our view a sound one in ensuring that that there is a level of certainty.The difficulty with the proposed test as to whether a condition is long term – which is stated to permit the Tribunal to make a "common sense" decision – is that it effectively means that both employees and employers (or service provision users and service providers) will have no certainty as to the conditions which are caught and which they need to take into account unless they litigate." (Huw Thomas, Carey Olsen)

Addiction

"Since addiction is a medical matter, treated with medical treatment and gaining ground as being seen as a disease why then is it that it is considered to be left out?" (James Deane)

"I'm disappointed to read that addiction and other co-curring conditions would  not  be  treated  as  a  disability.  I  understand  the  need  for protecting against harm/criminal activity, but by not including addiction as a disability in any sense, keeps those suffering in a limbo between criminal or mentally ill - both of which ostracise them from society, which is part of the downward spiral and continuous cycle of the illness." (Anonymous individual)

"The exception of people living with addiction should be removed; addiction  to  substances  is  form  of  mental  distress,  and  addicts experience  disability  through  societal  barriers  and  exclusion, reinforcing their distress. Removing this exception would prevent the risk of people living with addiction from being discriminated against, or being excluded from services that would be beneficial." (Mike Steel)

Other comments on the definition

Why are only some of the UK exemptions to the definition of disability being included rather than all of them? Are hayfever, voyeurism, and exhibitionism different in Jersey from the UK? (Professor Claire de Than, Institute of Law, Jersey)

"We would also suggest that Jersey should adopt the provisions of Regulation 6 of the Equality Act (Disability) Regulations 2010: "For the purposes of the Act, where a child under six years of age has an impairment which does not have a substantial and long-term adverse effect  on  the  ability  of  that  child  to  carry  out  normal  day-to-day activities, the impairment is to be taken to have a substantial and long- term adverse effect on the ability of that child to carry out normal day- to-day activities where it would normally have that effect on the ability of a person aged 6 years or over to carry out normal day-to-day activities."" (Huw Thomas, Carey Olsen)

"If Jeresy's disability strategy is to be informed by the social model of disability, it should include developments of, and reactions to, the social model, which address neuro-divergence (1). For example, these developments understand Autism as not being an impairment, but as a way of being; Autism and other neuro-divergent ways of being are socially constructed as an impairment.. Therefore the definition should include the term neuro-divergence.'" (Mike Steel)

"Some at the JDP meeting questioned the phrase when taken together if more than one' as implying that more than one impairment was needed to be disabled. The Committee do not think this is necessarily unclear. We understood this to mean that any single impairment could qualify'  for  someone  to  be  disabled,  if  severe  enough,  or  a combination of impairments of lesser severity, taken together, could qualify. We are not law draftsmen, but perhaps that phrase could be reviewed." (Jersey Disability Partnership)

2. Direct discrimination – more favourable treatment

Respondents were asked if they agree with the proposed extension to the description of direct discrimination so that more favourable treatment afforded to an individual because of his or her disability will not be direct discrimination.

Good practice sometimes requires taking positive measures to support a person with a disability. For example, an employer might guarantee an interview to disabled job applicants who meet the minimum criteria or may make arrangements allowing a disabled employee to work flexibly, or benefit from particular equipment.

Of the responses to the Minister's survey, 96 percent of respondents agreed with  the  proposed  exception  for  more  favourable  treatment.  Comments included the following;

"If such an extension were not in place it is likely to render disability as a  protected  characteristic  unusable  for  the  majority  of  those with disabilities, therefore rather hollow 'protection'." (JACS)

"JET fully supports the exemption for favourable treatment it saves any confusion over what is and what isn't "positive action" which is the term used in the UK to enable this type of differentiation. We fully support the proposed wider provision that does not treat people with a disability as a homogenous group but recognises that all people are individuals and that different action may be required to meet their specific needs." (Jersey Employment Trust)

"Again the UK focus on comparators creates unnecessary complexity. As  the  consultation  paper  puts  it:  "  The  equivalent  Equality  Act provision only applies to the relative treatment of a disabled person and  a  non-disabled  person.  We  are  proposing  a  wider  provision because there may be circumstances where special treatment that is appropriate in relation to one individual with a particular disability may not be appropriate to another individual with a different disability. For example, an employer may allow an employee with dyslexia to have longer to complete particular tasks, but would not afford the same consideration to a person who uses a wheelchair."" (Unite the Union)

"It  does  depend  on  whether  the  more  favourable  treatment  is  a proportionate means of achieving a legitimate aim'. A concern is how does an employer determine whether someone is disabled and what is proportionate?" (Representative of a group that supports people with a disability or condition)

"From personal experience I can say that specialised equipment has enabled me to keep my job." (Jennifer Stafford, Deputy -Chair of Sight Impaired Partnership Board)

"Disability awareness training needs to be part of any induction for a new  job  and  in  staff  training.  Every  opportunity  to  use  assistive technology must be explored and GST rated zero on all disability aids." (Peter Le Feuvre, Chairman of the dDeaf Partnership Board / Member of Sight Impaired Board)

"It is high time that the disabling aspects of the way that society is designed  is  recognised  and  ameliorated  to  make  participation  in society accessible for disabled people. This is a good move to bring in more  talent,  intelligence  and  perspectives  into  the  endeavors  of society." (James Deane)

"It would be good for dDeaf and hard of hearing and deaf blind (sight and hearing impaired) islanders to have improved access to all areas." (Senior Practitioner with dDeaf and hard of Hearing People)

"Better communication and hearing awareness needs to be shared so that needs are automatically  met for dDeaf, hard of hearing and deafblind people." (Member of dDeaf Partnership Board)

"YES we agree. However, we think it does depend on whether the more favourable treatment is a proportionate means of achieving a legitimate aim'. Our concern is how does an employer determine whether someone is disabled and what is proportionate?" (Jersey Disability Partnership)

"While  welcome,  agreement  is  with  reservations;  the  term  more favourable  treatment'  is  open to  misinterpretation;  treating  people equally does not mean treating people more favourably', or treating everyone  in  the  same  way.  The  more  favourable  treatment'  of Disabled people indicates that we require favourable treatment to remedy disadvantages, disadvantages which (in social model thinking) arise from societal barriers and disabling practices. Therefore the focus  of  change  should  be  on  removing  disabling  barriers  and practices, not on Disabled people." (Mike Steel)

3. Direct discrimination – discrimination arising from a disability

Respondents  were  asked  if  they  agree  with  the  proposal  that  direct discrimination  should  include  treating  a  disabled  person  unfavourably because of something arising in consequence of the persons' disability.

This extra measure has been included because the current protection against direct discrimination may be of limited use in the context of disability. For example, if a restaurant refuses to seat a customer with a guide dog, that is unlikely to be direct discrimination. The refusal is because of the dog rather than because of the disability itself. However, the fact that the customer is accompanied by a dog is a fact which only arises because of his or her disability and so this should amount to direct discrimination, unless the unfavourable treatment is justified (a proportionate means of achieving a legitimate aim). The provision would apply only where the respondent knows or ought to have known of the person's disability.

Of the responses to the Minister's survey, 97 percent of respondents agreed that  direct  discrimination  should  include  treating  a  disabled  person unfavourably because of something arising in consequence of their disability. Comments included the following;

"YES we agree. Darren gave a good example about discriminating against a blind/visually impaired person with a guide dog, on the basis that no dogs were allowed at a venue, rather than discriminating against someone who is blind. In fact a lady at the JDP meeting had experienced exactly that form of discrimination in restaurants." (Jersey Disability Partnership)

"My personal experience as a guide dog owner means I certainly believe that I should not be discriminated against because I rely on my dog to take me to the places I need and want to go to." (Jennifer Stafford, Deputy -Chair of Sight Impaired Partnership Board)

"Of  12  respondents,  75%  agree  with  this  added  protection  of consequential  discrimination'.  Of  those  dissenting,  concern  was expressed that such protection gave individuals with a disability more favourable treatment than othersOf 11 respondents, 100% agree with the availability of a defence to consequential discrimination." (Law at Work)

"There is no description of what an employee is reasonably expected to know. Is the responsibility on the person to disclose their disability? Or is it that everyone is to ask/ request everyone else notice of before any relating or provision of service etc. o their disability?" (James Deane)

"The  above  would  also  presumably  mean  that  for  any  new  job advertised, the employer will need to request information as to whether a prospective employee has a disability, the employee may not wish to disclose their disability at this stage for fear of being discriminated against  in  the  selection  process.  How  would  discrimination  in  the selection process be monitored and designed out?" (Gaby Deane)

"We understand that the reference to "something" is intended to be broad and capture, for example, where an individual is dismissed by reason of sickness absence but that sickness absence is caused due

to a disability. That dismissal would amount to disability discrimination because  the  reason  for  dismissal  was  as  a  consequence  of  the disability. We are of the view that this test is positive in terms of its application. Although, its scope is likely to be wide." (Law firm)

"Yes  and  no.  It  is  acknowledged  that  in  certain  circumstances continued absence from work related to disability may make it difficult for an employer to terminate employment. the onus on employers to ensure that any unfavourable treatment is proportionate may be a grey area and one which is impossible to justify. this could be alleviated by requiring employers to undertake impact assessments." (Anonymous employer)

"I think it will be important to educate employers on the way they should apply these provisions to prevent confusion or misunderstandings on its application." (Anonymous advisor on employment matters)

"It may well be the consequences of, rather than the disability itself that may cause problems' as can be seen in the example above. Some consequences may not be as obvious as an assistance dog, but the consequence of having - say - diabetes means that regular sugar levels and medication need to be taken, this in turn may make overtime at short notice a problem; or an individual who has no outwardly visible signs of a disability but would require either a larger screen or larger font in order to complete tasks due to a visual impairment." (JACS)

"The test of "arising in consequence" of the persons' disability is preferable to the test under UK law in this context...Unite also accepts the provision that there will be no direct discrimination where the unfavourable  treatment  is  a  proportionate  means  of  achieving  a legitimate  aim,  including  that  if  a  disability  renders  an  employee incapable of going to work, there will come a point when their employer may have no choice but to terminate employment. We also note that the provision is only intended to apply if the respondent knows or ought to have known of the person's disability." (Unite the Union)

Outcomes

This provision is an important part of the protection for disabled people and it mirrors the position in the UK. The Minister is satisfied that there is a clear need for the provision to apply only when the alleged discriminator knows of the  individual's  disability.  Knowledge  of  the  disability  should  lead  to  a consideration of how that might affect the way in which a disabled person participates  in  a  particular  activity.  But  without  the  requirement  for  that knowledge then almost any action could amount to disability. For example, if an employee failed to complete work quickly enough, that might lead to dismissal. However if the employer knew of a disability that might affect the pace of the employee's work then dismissal would only be lawful if it was a proportionate response. We cannot expect employers to avoid taking any disciplinary action because of a potential risk that any employee might be disabled.

The Law will not require anyone to disclose the fact that they are disabled at any  stage  in  the  recruitment  process.  However,  if  the  disability  is  not disclosed, it would be unfair to expect the employer to make adjustments in relation to any issues that might arise as a result.

The  Minister  notes  from  the  consultation  responses  that  there  is  some confusion over the scope of this provision and will ensure that appropriate guidance is published before the measure comes into force.

4. Indirect discrimination - reasonable adjustments

Respondents were asked if they agree that a failure to make reasonable adjustments for disabled people in three defined circumstances should be indirect discrimination under the Law. Much of the disadvantage suffered by disabled people is imposed by barriers and obstacles inadvertently placed in their way. The draft Regulations therefore extend the description of what constitutes  indirect  discrimination  to  include  a  duty  to  make  reasonable adjustments in the following three sets of circumstances -

1. Where a provision, criterion or practice causes a disadvantage (e.g. a parking policy or a sickness absence policy)
2. Where the absence of an auxiliary aid causes a disadvantage (e.g. a hearing induction loop or information in alternative formats)
3. Where a physical feature of premises causes a disadvantage (e.g. the approach to or exit from a building, stairs, or bathroom facilities)

In deciding whether reasonable steps have been taken to prevent or remove the disadvantage, factors will be taken into account such as the cost and the size of the business.

Of the responses to the Minister's survey, 91 percent of respondents agreed that a failure to make reasonable adjustments for disabled people should be indirect  discrimination  in  the  three  defined  circumstances.  Comments included the following;

"A lack of such a provision would effectively be reduction in the amount of protection afforded under the legislation and therefore defeat the purpose for a significant number of individuals." (JACS)

"Although perhaps the States can support smaller employers with the cost of making these adjustments." (Anonymous individual)

"All public buildings should have Fire Alarms that are dDeaf friendly. They should also have high visibility edging to steps and uncluttered corridors for ease of access and use by the sight impaired." (Peter Le Feuvre, Chairman of the dDeaf Partnership Board / Member of Sight Impaired Board)

"There are perhaps two parts to this. Firstly, what adjustments are available and, secondly, what adjustments will be reasonable'? What will be the criteria to test for reasonableness? The new Article 7A(9) gives  useful  guidance  but  not  thresholds  or  tests  for  cost, effectiveness, practicality, resource availability and the nature or size of the business. The provision of free or low cost competent advice, or guidelines, will be key here, e.g. whether from JACS or Citizens Advice."  (Representative  of  a  group  that  supports  people  with  a disability or condition)

"The issue was raised at the JDP meeting about what was reasonable if  an  employee  had  a  disability  (e.g.  cataracts),  which  could  be resolved by an operation, but the individual declined to have the appropriate medical treatment. Also at what point does the cost of more favourable treatment' make it unaffordable to the employer?" (Jersey Disability Partnership)

"The physical/built environment can often be a barrier which prevents people with a disability from playing a full part in the community. Experience shows that unless there is a Law in place, change will not necessarily  happen.  Social  inclusion  is  critically  important  for  all people, so this extension benefits the entire population - as does the Law as a whole." (Representative of a group that supports people with a disability or condition)

"It is important to emphasise as stated within the guidance for this consultation that the vast majority of reasonable adjustments can be made at either no or very low cost. In 2016 JET placed 208 people with a  disability/  long  term  health  condition  into  employment  with  no financial implication for the employer. Guidance for employers and service providers should be available on what and how reasonable adjustments can be made. In the employment situation JET would be more than willing to advise any employer of how barriers can be overcome within the work place." (Jersey Employment Trust)

"I agreee because being able to physically enter a building is not enough if the way a service is provided or lack of aids prevents access." (Anonymous individual)

"As stated before, provided that changes can be made easily in an environment. A lift might mean major structural alterations and might even be impossible. A blanket policy is not rational unless it takes account of circumstances.In respect of that, it will be interesting to see how  the  States  themselves  plan  for  the  visitors  gallery  which  is inaccessible to wheel chair users." (Tony Bellows)

"Article 7A (1) What constitutes 'substantial disadvantage'? How would disabled people understand this so as to be able to know it what they experience it?" (James Deane)

"Need to make sure that there is right awareness training and guidance in place. Not from a hearing perspective of what they think they might need if they were hearing impaired / deaf e.g. the experience and views are sought from the appropriate groups to reflect the diversity of needs." (dDeaf individuals as a group using British Sign Language)

"Housing do adjust premises for a disabled person in a wheelchair such as making doors wider, fitting ramps and adjusting the height of kitchen worktops etc. When you are deaf you have to rely on Charities to help you with a light bell so people outside your home are able to contact you. Door entry/phone entry systems are no good for a deaf person and it is expensive to convert these to work for deaf people. Landlords are so insensitive to a deaf persons needs and I can see many not wanting a deaf person to occupy their rented properties as a result. Housing are no exception." (Member of the deaf community)

"The  old  factors  from  the  DDA  1995,  s.18B  as  to  reasonable adjustments have been inserted into the Draft Regulations, although they are no longer directly part of the comparable UK law and are now merely  in  the  EHRC  Code  as  factors which  might  be  taken  into account, not must. This blending of old and new approaches from UK source laws might not work well in practice, since the changes to UK law  were  deliberate  and  made  as  responses  to  particular developments.I  would  be  interested  in  the  reason  behind  the difference in the proposal." (Professor Claire de Than, Institute of Law, Jersey)

"In  order  for  companies  to  thoroughly  examine  the  full  extent  of necessary  adjustment  in  the  workplace,  it  is  highly  likely  that professional opinions will be sought. For some small and medium sized organisations and charities, the cost of this assessment could be difficult to absorb. The Jersey Chamber of Commerce would suggest that the States of Jersey has a duty of care to help businesses and organisations carry out this type of assessment. Therefore, in the same way that the Jersey Advisory and Conciliation Service (JACS) provides advice and templates on issues such as disciplinary matters, so too should the States provide procedures and assessment templates and guide  notes,  as  to  what  is  considered  reasonable  adjustment'." (Jersey Chamber of Commerce)

"Drawing on the definitions from the Equality Act 2010, "substantial" means more than minor or trivial. We would therefore suggest that it may be appropriate to include a definition of substantial disadvantage within the Disability Regulations to enable a comparative exercise to be carried out to determine whether a person has failed to make reasonable adjustments." (Law firm)

"The Royal Court, where jury trials are predominantly held at present, is  a  listed  building  and  in  many  ways,  is  not  susceptible  to reconfiguration without changing the character of a historic building or at considerable expenseAt present, if a person with a disability is served with a summons for Jury service, if they notify the Viscount's Department  of  their  disability  and  ask  to  be  released  from  the obligation to serve, the Viscount has an ability to grant them an exemption from serviceIf, however, once the Regulations have been introduced, a person with a disability did not seek exemption and wanted to serve as a juror there may be cases where it would be very difficult indeed to make sufficient adjustments to allow them to serve. ..Our concern is that we may not be able, in advance of a person being called to serve on a trial, to make adjustments within the relevant timescale." (Viscount)

"On the basis of the sample work JPH intends to further investigate the status of the buildings and spaces for which it is responsible to fully ascertain the condition of the portfolio and prioritise any works or moves that might be required to ensure appropriate accessibility to services and to employees. This will start with a formal programme of assessment during early / mid 2018It is apparent that there may well be  significant  resource  implications.  Some  buildings  and  places perform well on accessibility others require significant investment - easily into the millions of pounds - in order to provide appropriate arrangements. Limitations such as some of the buildings and places being Listed adds further complexities to the process. Once a fuller picture of the likely implications are available any required actions can be prioritised and an action plan which will cover a number of years can be formulated." (Jersey Property Holdings)

"By requiring that prior knowledge of a disability is needed to conclude that this provision has been breached, there is a somewhat bizarre implication that the discriminatory disadvantage caused by a PCP may not be required to be removed or avoided, if the employer or service provider  maintains  he  didn't  know  of  the  disability."  (Guernsey Disability Alliance)

5. Indirect discrimination - reasonable adjustments – 2 years' notice

Respondents were asked if they agreed with the proposal to give 2 years' notice of the requirement to make reasonable adjustments where a physical feature of premises causes a disadvantage.

The consultation paper noted that many reasonable adjustments can be made at very little cost and with relatively little effort. However, a duty to make alterations to the physical features of a workplace or other premises is more onerous and so we proposed that the requirement to make adjustments to physical premises should not come into force until 1 September 2020 to give businesses time to plan any changes that may be needed.

Of the responses to the Minister's survey, 84 percent of respondents agreed with the proposal to give 2 years' notice. Comments included the following;

"This gives an opportunity for such adjustments to be made over this period without rushing things through or being exposed to the risk of claims, by having 'the adjustment' clause in from day one." (JACS)

"I have always strongly supported a period of reasonable adjustment' for  the  Charities  and  Discrimination  laws.  I  believe  2  years  is  a minimum  and  would  not  wish  to  see  that  period  reduced." (Representative of a group that supports people with a disability or condition)

"I agree but it would be better if the notice period was 12 months." (Anonymous service provider)

"A target is a good idea, as are the resources to ensure it is 'policed'." (Representative of a group that supports people with a disability or condition)

"I think large businesses and services can afford to make necessary changes sooner than this." (Jennifer Stafford, Deputy -Chair of Sight Impaired Partnership Board)

"Building work cannot always be done immediately." (Anonymous individual)

"It would seem fair that service providers should have time to make significant alterations particularly where planning approval would be required. However there are some circumstances where the physical adjustment  is  very  minor  and  it  would  not  be  unreasonable  for providers to undertake this minor adjustment immediately." (Jersey Employment Trust)

"I believe should be longer, at least 3 years, as some works may will need to be scheduled when least disruptive to a business and when finances available." (Anonymous employer)

"A longer period and funding should also be put in place." (Anonymous employer)

"A premises should be required to publish the necessary adjustments outstanding to assist those with a disability in making plans in the interim." (Anonymous individual)

"Impossible  to  adjust  some  premises.....what  then?"  (Anonymous employer)

"Not all physical features are difficult to change, if it's handrails, a ramp etc these are simple but physical things that should just be done." (Anonymous employee)

"Some of these changes will be costly, and smaller businesses might not have the available funds to make changes that might only be used frequently, if at all." (Anonymous individual)

"Adequate time should be allowed in the case of introducing physical changes  to  the  premises  in  order  to  provide  these  reasonable adjustments." (Paul St John Turner)

"Discussions at the consultation event showed that people felt the 2020 deadline should be increased to allow businesses more time to make these adjustments. Whilst I do sympathise with this point of view, I would not wish it to be extended by too long. As also discussed businesses have been aware of this for some time and I think the relevant word here is REASONABLE. I would also hope that the disabled community will also be reasonable and not expect small business to make expensive changes outside of their financial and trading ability." (Lesley Bratch)

"Some adjustments do not require structural / physical changes. Some involve a change in cultural approach and change of attitude through awareness of needs such as loop systems, subtitled presentations / training materials." (Senior Practitioner with dDeaf and hard of Hearing People)

"I would suggest that in relation to the changes to be made to buildings to make adequate adaptations for the disabled – that if a longer timespan is given for this work to be carried out – i.e. five years rather than the proposed two years, you shall need to make a stipulation that there should be proof that a business has this work in hand/under way." (Gaye Hitchen)

"For structural and physical adjustments this may be more relevant. For some things simple adjustments can make a big difference such as set up of furniture, lighting, non-reflective glass at reception desks, quiet / break out areas. Loop systems, fire alarms, other options that allow dorp in that does not rely on spoken intercoms." (Member of dDeaf Partnership Board)

"From the uk experience, there are still many premises which do not comply. ~Our aim should be to ensure that as many premises as possible can comply. 2 years should be extended to 5 to enable phased compliance and minimised opportunities to avoid compliance." (Anonymous employer)

"If  free  help,  as  outlined  above  is  available  via  a  multi-agency approach, involving experts from the Planning and Building Control Departments along with Health & Social Services, then a period of two years may be a sufficient timescale." (Jersey Chamber of Commerce)

"Of 11 respondents, 64% reported that two years was an insufficient lead in time. Dissenting respondents felt two years was insufficient time  to  take  the  pre-requisite  steps  to  renovations  (i.e.  obtaining specialist medical advice as regards the individual and construction advice  as  regards  the  premises  inc.:  landlord  approval;  planning permissions;  cost  quotations;  budget  commitments;  sourcing  a building  contractor  and  scheduling  works  to  accommodate  new construction  laws).  Others  cited  the  state  of  Jersey  construction industry' and envisage the difficulty of obtaining a contractor in the local market as warranting more time." (Law at Work)

"We are of the view that the proposal to give a two-year transitional period in relation to the physical features of premises is appropriate. We would strongly recommend that in that time appropriate statutory guidance is formulated to provide guidance to those responsible for premises. We would recommend that a longer transitional period be granted  in  respect  of  employment  in  domestic  dwellings."  (Huw Thomas, Carey Olsen)

"We believe 2 years is a minimum and would not wish to see that period reducedOur concern on having only a two year period is that it is likely to be insufficient if significant building works, for example, are required. It is not just a question of drawing up plans and obtaining the necessary planning permissions; for charities is may be necessary to raise funds to pay for adjustments' and this can take several months or   a  year  or  so,  depending  on  the  amount."  (Jersey  Disability Partnership)

"Although  the  Strategic  Housing  Unit  believes  that  the  proposed legislative provisions around reasonable adjustments' are a positive obligation, we note there may be concern from the industry with regard to the practical application of this requirement. Whilst alterations such as the installation of a handrail in a residential property can be made at little cost and with relatively little effort, a duty to make large-scale alterations to a property are more demanding and some properties might not easily lend themselves to such alterations. The Strategic Housing Unit, therefore, accepts that the requirement should not come into force until 1st September 2020, which will provide landlords and managing agents with a period of time to factor such potential costs into their business models." (Strategic Housing Unit)

"Whilst fully supporting the Disability Strategy and recognising the central role that the Regulations will play in supporting individuals when they believe they have experienced discrimination the timescale for them coming into effect – September 2020 – would be extremely challenging for JPH to complete the assessments and any necessary works,  alterations  or  relocation  of  services.  Whilst  committing  to progress the programme of assessments, a coming into force date of September 2021 at the earliest – a minimum of 1 extra year to the timescale as proposed in the consultation – may enable more of the programme to be completed." (Jersey Property Holdings)

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 following five exceptions that are specific to disability discrimination were proposed.

6. Exceptions - school admissions

Respondents were asked if they agree with the proposed exception which provides that the selection of pupils according to ability will not be an act of discrimination in relation to school admissions.

Of the responses to the Minister's survey, 85 percent of respondents agreed with the proposed exception. Comments included the following;

"I have struggled with this, based on having an autistic son. Often the ability of an autistic child can be very strong in areas such as maths, and much less strong in, for instance, English. I believe therefore this exemption gives a school an ability to discriminate where a child meets or very comfortably exceeds the academic standards in nearly all subjects, and as such School will  need  to  set  very  clear  guidance,  where  fore  instance  a  child  has comfortably exceeded an average mark but failed in one or a few areas. Secondly, I am concerned that where extra time is given for exams, a School will be aware of additional needs ahead of determining whether a standard is met,  and  this  could  lead  to  some  bias  entering  the  decision  process." (Anonymous individual)

"I believe that children with dyslexia and Aspergers should be provided with teaching styles and tools aligned to their brain function. They can be highly intelligent  students  with  the  potential  to  achieve  academic  excellence." (Anonymous employee)

"It is important that the institution shows they have made any reasonable adjustment to ensure  the  disability  has not  impaired  the  results  of  e.g. selection tests/interviews. A disability may mean that the individual needs additional support to evidence their academic ability." (Anonymous individual)

"A child must be able to cope academically in whichever school they are in." (Anonymous individual)

"This would be a dis-service to pupils with disabilities as their individual needs are  unlikely  to  be  fully  met.   Furthermore  where  there  is  an  expected academic entry level for schools it would not just be pupils with a disability that were unable to meet the relevant criteria." (JACS)

"It is in the interests of pupils of all ability levels that they be placed in schools or school streams appropriate for their level of ability. Mismatches in this respect can give rise to undue stress for both pupils and teachers, and impair educational performance." (Paul St John Turner)

"It needs to be agreed by another independent organisation. some dDeaf and hard of hearing students need adjustments in schools / colleges etc to meet their needs and this shouldn't be confused with them not having ability." (dDeaf individuals as a group using British Sign Language)

"This proposal seeks to continue the segregation and misunderstanding of disabled people in Jersey. If children when they are growing up don't socialise with and have friendly relations with disabled people they don't see disability as normal and acceptable." (James Deane)

"JET cannot see the need for such an exemption. This should be covered by the generic principle that it is not unlawful to set genuine criteria / standards if it is "a proportionate means of achieving a legitimate aim"To be legitimate, the  aim  of  the  provision,  criterion  or  practice  must  be  legal  and  non- discriminatory and must relate to a reasonable need on the part of the education provider.Even if the aim is legitimate, the means of achieving it must be proportionate. This means that the measure or actions taken to achieve  the  aim  are  appropriate  and  necessary.  Whether  something  is proportionate in the circumstances will be a question of fact and involve weighing up the discriminatory impact of the action against the reasons for it, and  asking  if  there  is  any  other  way  of  achieving  the  aim."  (Jersey Employment Trust)

"We do not agree with this exception as this could prevent children and young people  with  specific  difficulties  accessing  education  which  reasonable adjustments could otherwise make accessible and enable them to fulfil their full potential." (National Education Union – NUT Section, South West Region) "Unite members have experience of children with relatively severe disabilities entering main stream classrooms, to the benefit of the disabled and non- disabled  pupils  and  to  societies  greater  understanding  of  the  issues associated with disablement. We also consider this exception undermines the strategy and outcome expressed." (Unite the Union)

"Some dDeaf and hard of hearing students need adjustments in schools / colleges etc to meet their needs and this shouldn't be confused with them not having  ability.There  needs  to  be  a  standardised,  fair  and  independent assessment of a person's ability so that they are not excluded from achieving their best potential. Some dDeaf and hard of hearing people need the right support to gain their best potential this is not just good acoustic conditions, hearing  aids  and  additional  personal  assistive  equipment  but  human resources  such  as  notetakers,  communication  support  and  translation." (Senior Practitioner with dDeaf and hard of Hearing People)

"Members of the GDA have diverse views about the merits or otherwise of selective education systems and we are therefore unable to offer a consensus view about excluding a student from a school on the basis of ability or disability. However, the GDA is generally committed to ensuring that people with  disabilities  are  not  excluded  from  the  general  education  system." (Guernsey Disability Alliance)

"No.  This  proposal,  if  enacted,  would  by  definition  result  in  segregated education, contravening the following article of the CRPD; Article 24.2a – Education." (Mike Steel)

"YES we agree. The explanatory note in the consultation document, Section 5, first bullet point, is helpful, but is not carried forward into the regulations. We understand that the legal terminology in the regulations may mean the same thing, but again we would hope such guidance and examples in the consultation document are not lost' once the law is agreed by the States." (Jersey Disability Partnership)

7. Exceptions - financial and insurance services

Respondents were asked if they agree with the proposed exception which would permit disability discrimination in relation to financial and insurance arrangements only where the act is reasonable having regard to statistics or actuarial data.

The exception would allow providers of insurance and financial services to continue to use disability as a factor in assessing risk, calculating premiums and benefits and charging for their products, only if it is reasonable to do so based on statistics and actuarial data from a source on which it is reasonable to  rely.  Similar  exceptions  already  exist  in  relation  to  the  protected characteristics of race, sex and age.

Of the responses to the Minister's survey, 86 percent of respondents agreed with  the proposed  exception.  Comments from  respondents  included  the following;

"The use of statistical/actuarial data is used across other protected characteristics, therefore is appropriate to have the same exception for disability as well." (JACS)

"It seems appropriate that the cost of these arrangements should reflect the risks and costs involved in providing them." (Paul St John Turner)

"It would be reasonable because this is how the premiums are arrived at." (Anonymous individual)

"Provided the risk is demonstrable." (Anonymous employer)

"With protection in place to ensure that statistics and actuarial data is fair and unbiased. i.e. not only from a hearing perspective but from a deaf perspective." (Member of dDeaf Partnership Board)

"I am not sure. I do not want to see insurance premiums preventing someone doing an activity that they are capable of doing. Unless this exception was tightly defined it could be used as an unintended get out."  (Peter  Le  Feuvre,  Chairman  of  the  dDeaf  Partnership Board/Member of Sight Impaired Board)

"There is a need to educate the Insurance sector about the nature and consequence of disability - ie to teach what can as well as what cannot be done by someone living with a disability. I am thinking of opportunity to work for example." (Representative of a group that supports people with a disability or condition)

"It needs to be clear what these might be so disabled people are aware of  these  and  can  understand  why  this  may  be  an  exemption. Sometimes for example dDeaf people feel that they are discriminated against as the assumption that they do not have some functional hearing that puts them close to being able to experience the world as close to a hearing person when they have functioning hearing aids. It needs to be visible and transparent what these rules / exemptions are." (Senior Practitioner with dDeaf and hard of Hearing People)

"It should be the case that for any insurance where disability is relevant that the States provide the insurance, when justice and fairness would best be served, but if not there should be no exception that penalises citizens of Jersey in relation to insurance companies as a result of a disability that is no fault of their own." (Unite the Union)

"No. This proposal, if enacted, could contravene the following article of the  CRPD;  Article  28  –  Adequate  standard  of  living  and  social protection." (Mike Steel)

"Jersey should follow the Uk equality act on this provision where insurance providers are not allowed to have blanket or general policies of refusing to provide insurance or only providing insurance on certain terms, to disabled people. This would be unlawful discrimination under the Equality Act. The insurance company is allowed to charge a higher premium under the Equality Act but only if they can show that there's a greater risk in insuring you because of your disability. They would have  to  base  their  decision  on  your  actual  health  condition  and objective information about condition." (Jersey Employment Trust)

8. Exceptions - sport and competitions

Respondents were asked if they agree with the proposed exception which would permit disability discrimination in relation to sport and competitions as long  as  the  act  is  consistent  with  the  rules  of  international  sporting organisations, e.g. the Paralympic rules.

Of  the  responses  to  the  Minister's  survey,  92  percent  agreed  with  the exception. Comments from respondents included the following;

"In non competitive sport any disabled person should be able to join in. International sporting organisations should be required to look at the feasibility of disabled people taking up the sport and find a way of including them." (Peter Le Feuvre, Chairman of the dDeaf Partnership Board/Member of Sight Impaired Board)

"This  exception  is  also  used  for  other  protected  characteristics therefore  appropriate  to  include  it  under  disability  as  well,  to  do otherwise is likely to place Jersey at a disadvantage especially when competing at international/national level." (JACS)

"In general principle we believe that :-It should be unlawful for sports clubs to treat disabled people less favourably for a reason related to their disability Sports clubs should be required to make reasonable adjustments  for  disabled  people  such  as  providing  extra  help, specialist training for coaches or making changes to the way in which they provide their services Sports clubs should also have to make reasonable adjustments to the physical features of their premises in order to overcome physical barriers to access." (Jersey Employment Trust)

"The exception is too wide. There may be many instances in which those with a measure of disability wish to compete, but there is no justification for denying the opportunity." (Unite the Union)

"Qualified  yes.  However,  any  exclusions  from  sporting  clubs  or activities should be objectively justified." (Guernsey Disability Alliance)

"dDeaf people can be placed in-between disabled and non-disabled groupings e.g. they are not eligible to compete in the Paralympics on dDeafness alone." (Senior Practitioner with dDeaf and hard of Hearing People)

"Not as currently worded. This proposal, if enacted, would not fully meet  requirements  of  the  following  article  of  the  CRPD;  30.5  – Participation in cultural life, recreation, leisure and sport." (Mike Steel)

"This should be positive discrimination as well – i.e. for disabled people to be able to engage in sports adapted for their needs. This may mean exclusive as well as inclusive sports." (Member of dDeaf Partnership Board)

"Yes and no. Providing the rules of international sporting organisations demonstrate that discrimination risk has been evaluated and treated appropriately. It is not enough to rely on n organisation's reputation and standing which does not demonstrate compliance." (Anonymous employer)

9. Exceptions - passenger transport services

Respondents were asked if they agree with the proposed exception which provides that a failure to make reasonable adjustments will not be an act of discrimination in relation to the provision of passenger transport services or private hire vehicles. The consultation paper noted that these services would be separately regulated by the Infrastructure Minister.

Of  the  responses  to  the  Minister's  survey,  57  percent  agreed  with  the exception. This was the lowest level of support for any of the proposals. Comments from respondents included the following;

"Qualified yes. Whilst the GDA is in favour of reducing reliance on individual complaint in tackling systemic discrimination by introducing regulations concerning accessibility standards, it could be a mistake to remove the possibility of complaint under the Jersey Discrimination Law  unless  it was  clear  that  this  only  removed  the  possibility  of individual complaint regarding the design of vehicles and systems expressly caught by the regulations." (Guernsey Disability Alliance)

"This seems to refer only to a failure to make reasonable adjustments. Perhaps we have misunderstood, but although we can understand that a taxi, for example, could not take a passenger in a wheelchair unless the driver has a wheelchair accessible vehicle, it would also seem to exempt refusal to take any disabled passenger, almost at the whim of the driver, e.g. someone with a visual, hearing, or speech impairment, or other physical or mental impairment, even if the disabled person carries a connect-card', or similar, explaining their disability and the assistance  they  might  need."  (Jersey  Disability  Partnership)

"No. This proposal, if enacted, would contravene the following articles

of the UN-CRPD, Article 9.1a  – Accessibility  Article 20  – Personal mobility." (Mike Steel)

"Yes - already regulated to this standard." (Nikki Withe, HR & Training and Community Manager, LibertyBus)

"I have said yes but I think the cost implications need to be considered

and the viability in relation to wheelchair users on public transport if an group needed access to the bus at the same time."  (Anonymous employment adviser)

"If access is to be improved transport companies should comply and be assisted for doing so." (Anonymous employer)

"Not every taxi needs to be Wheelchair friendly, but there needs to be a  reasonable  number  available. I  believe  that  buses  should  be Wheelchair friendly. Vehicles need to have various heights of seats and hand grips for varying conditions." (Peter Le Feuvre, Chairman of the dDeaf Partnership Board/Member of Sight Impaired Board)

"We should perhaps consider a sliding scale of what is reasonable, e.g, a taxi company with a fleet if 20 vehicles should surely have 1-2 vehicles with capabilities to take wheelchairs and support people with disabilities." (Anonymous employee)

"I do not think transport vehicles (i.e. busses, taxis & aeroplanes) should be exempt. Why should a disabled person have to wait much longer in a taxi queue just for the right type of taxi to become available? I think all transport services should be able to cater for the disabled." (Anonymous individual)

"I believe this should not be excluded and left to another minister. It should be in this act and hire vehicles and transport may be made available." (Anonymous individual)

"I am not sure how this is different to e.g. shops having to have ramps in place or a newly built house has to have doorways suitable for a wheelchair." (Anonymous individual)

"Separate  regulation  needs  to  be  amended  in  parallel." (Representative of a group that supports people with a disability or condition)

"JET is of the view that people with disability should expect to have accessibility  on  public  transport  and  therefore  believes  statutory provisions should be present in local discrimination legislation (as in the UK) and not a matter for wider public transport policies. Movement around Jersey by people with disabilities, reduced mobility or certain health conditions can be fundamental to them accessing services or maintaining employment...the UK the accessibility requirements for buses  and  coaches  are  set  out  in  the  public  service  vehicles accessibility regulations 2000 which came into force in August 2000. Under this legislation,  all  buses  must  have  been  accessible  by 1 January 2017 and all coaches by 1 January 2020. (Jersey Employment Trust)

"The separate regulations by the Infrastructure Minister would seem more appropriate." (Paul St John Turner)

"Loop systems in cabs would be useful. better understanding and awareness  of  invisible  disabilities  and  how  to  communicate  and support needs to be there as well." (dDeaf individuals as a group using British Sign Language)  

"The proposed exemption would discriminate against disabled people and would bring Jersey into disrepute by doing so. I submit that it would

be to the detriment of a disabled person if a  vehicle used to carry passengers laid on (by say a club or society) were to be inaccessible." (James Deane)

"It may be that individual passenger transport or private hire does not need to be accessible for every disability e.g. wheelchair users, but does need to make adjustments for the invisible disabilities and those that  are  not  just  about  wheelchair  users."  (Member  of  dDeaf Partnership Board)

"The Infrastructure Minister should be involved, but there is sense in the relevant laws being found in one place." (Professor Claire de Than, Institute of Law, Jersey)

"Only if "These services would be separately [and effectively] regulated by the Infrastructure Minister to ensure that vehicles are appropriately equipped to accommodate disabled users." (Unite the Union)

"Public transport is vital in enabling people with sight loss to live and work independently. Taxis and private hire vehicles (PHVs), and the door to door service they provide are particularly important for blind and partially sighted people, who are often unable to drive, and may have difficulties using other forms of public transport, such as buses. However, accessing taxis and PHVs can be a major challenge for assistance  dog owners:  A  Guide  Dogs  survey  found  that 42% of

assistance dog owners were refused by a taxi or PHV driver in a one - year period because of their dog – despite this being a criminal offence under the Equality Act 2010.[1] Such access refusals can have a significant impact on assistance dog owners' lives, leading to feelings

of  anger  and  embarrassment  and  a  loss  of  confidence  and independence. We would recommend that people who operate public service vehicles do not have a blanket exception as proposed in the draft  legislation,  and  that,  as  with  UK  law,  specific  appropriate exemptions (such as medical exemptions for taxi and PHV drivers who have a severe allergy to dog hair) are included in regulations. If the exemption is due to limitations on existing vehicles, such as vehicles that  are  unable  to  currently  accommodate  mobility  aids  such  as wheelchairs, we would encourage the States of Jersey to ensure that complementary legislation is in place with the aim of requiring public service vehicles to meet accessibility standards within a reasonable timeframe. For example, the UK's Public Service Vehicle Accessibility Regulations  (PSVAR)  2000  require  bus  operators  to  provide accessible vehicles, and gave sufficient time for operators to either modify or replace their vehicles. Similarly, provisions in the Equality Act 2010 concerning the carrying of wheelchairs by Taxis and PHVs also  had  a  time-delay.   Should  the  legislation  be  introduced  as proposed in the consultation paper, with exemptions in the provision

of passenger transport and for separate regulations to be introduced on this matter by the Infrastructure Minister, then a clear commitment on the timetable to consult on and publish these regulations should be made to ensure that the rights of assistance dog owners and other people with disabilities to use public transport are guaranteed." ('Guide Dogs')

Outcomes

The provision of accessible public transport is clearly an important factor in ensuring the participation of disabled people in society. The current exception is a very narrow exception because it only covers reasonable adjustments, which means that disabled passengers will be protected against both direct disability discrimination and also discrimination arising in consequence of a disability.  The  exception  would  not  allow  general  discrimination  against passengers on the grounds of disability, as some of the concerns suggest.

One example that arose in the consultation meetings was a taxi driver refusing to accommodate a guide dog. This would clearly be discrimination arising in consequence of a disability and the driver would be subject to the Law in the same way as a restaurant refusing admission for the same reason. If the driver is allergic to dogs, or has a profound fear of dogs, that might provide a defence of justification (a proportionate means of achieving a

10. Exceptions - Building Bye-laws

Respondents were asked if they agree with the proposed exception which provides that an act of discrimination done to comply with Building Bye-laws provides a defence to any claim for a failure to make a reasonable adjustment.

Of  the  responses  to  the  Minister's  survey,  71  percent  agreed  with  the exception. Comments from respondents included the following;

"Qualified yes – so long as the bye laws are not inherently and unjustifiably discriminatory." (Guernsey Disability Alliance)

"But it should also be extended to cover businesses which cant make reasonable  adjustments  to  buildings  due  to  building  by-law regulations." (Anonymous other' respondent)

"I don't think that there should be building by-laws which put people in this position. They need to be reviewed and changed if necessary." (Peter Le Feuvre, Chairman of the dDeaf Partnership Board/Member of Sight Impaired Board)

"Could carry high risk factors to not have to apply such by-laws." (JACS)

"I believe By-laws should be updated and that if that do not amend to accommodate disabled individuals, that the by-law should be over- ruled in that case." (Anonymous individual)

"Not as worded. This proposal, if enacted as currently described, risks not meeting the following articles of the UN-CRPD, Article 9.1a – Accessibility Article 20 – Personal mobility." (Mike Steel)

"This  depends  on  how  reasonable  the  by-laws  are  doesn't  it?" (Anonymous individual)

"Sometimes safety in a situation has to override ease of access." (Anonymous individual)

"Are there are other laws which could take precedence over the Disability law? E.g. Health and Safety legislation?" (Representative of a group that supports people with a disability or condition)

"Whilst the concept of a party being protected from sanctions under discrimination legislation as a result of them complying with restrictions imposed under the planning and building law (and its associated bye- law legislation)seems rational, JET feels such an approach detracts from the concept of "reasonableness" which will be present elsewhere in the discrimination legislation. For example, where proposals for a ramp or other accessibility aid are put forward by an employer and rejected by a States Authority should a duty be placed on the parties to re-examine the issue with a view to making reasonable adjustments to the development plan which would provide for accessibility and inclusion." (Jersey Employment Trust)

"Only if there is a commitment expressed in legislation to review building by-laws that are cited in any defence with a view to promoting the rights of those with disabilities." (Unite the Union)

"Any such building bye laws should, however, be subject to review for reasonableness in this context." (Paul St John Turner)

"Hopefully as building by-laws evolve the number of instances where this might arise will reduce." (Representative of a group that supports people with a disability or condition)

"Not sure that this is acceptable on the basis that not all alterations require structural changes. It would be beneficial if there were disabled people representation as a group where their experience gives them an expertise to share to look at how building by-laws and planning can be better suited to include disabled people's needs. Their perspective and  pragmatism  will  be  different  than  a  non-disabled,  hearing or sighted or cognitive able person would understand any access or barrier challenges to access." (Senior Practitioner with dDeaf and hard of Hearing People)

"The  by-laws  should  not  provide  a  mechanism  to  side  step  the requirements  to  provide  reasonable  adjustments."  (Anonymous employer)

11. Exceptions – Other exceptions

Respondents were asked if there are any other circumstances in which an exception  should  be  provided  that  has  not  been  covered  in  the  draft exceptions. The Minister wants to ensure that the introduction of protection against disability discrimination does not lead to unintended consequences that limit the legitimate activities of businesses, organisations, or individuals in Jersey.

Of the responses to the Minister's survey, 27 percent said that there are other circumstances in which an exception should be provided.

Comments from respondents included the following;

"Three respondents contended for an exemption for small businesses. One argued small employers should be wholly exempt but did not propose criteria for defining small employers (Anon., Finance/Legal, 10 employees). Two other respondents suggested the number of employees should determine when a business is small, suggesting 10 and  12  respectively  (Anon.,  Finance/Legal  150  employees)  and (Anon., Hotel/ Restaurant/ Bars, 10 employees). In contrast, another respondent felt local companies have known for a decade that this law was to come into force and should already have made provision (Anon.,  Transport,  storage  and  communications,  13  employees)." (Law at Work)

"The only addition which should be considered might arise on the repeal of the general exemption for selection in respect of domestic employment. If this proposal is adopted, it may be appropriate to consider a exemption from the positive duty to make reasonable adjustments in relation to domestic employment. However, this should be carefully considered." (Huw Thomas, Carey Olsen)

"Particular attention should be given to listed or historical buildings where  modification  is  either  impractical,  for  technical  or  financial reasons, or where modification may despoil the characteristic features of the building." (Representative of an historic building that is used by people of mixed ability)

"There may be health and safety grounds for being unable to provide a service or employ someone:- eg scuba diving, horse riding, scaffold workers, etc." (Anonymous other' respondent)

"All dental surgery staff must be fit and able to give CPR to a collapsed patient.  Staff  disability  is  inappropiate  in a  surgery."  (Anonymous employer)

"Size of business should be top priority in considering whether it is possible  to  employ  people  with  disabilities  and  risk  of  continued sickness be allowed as s consideration." (Anonymous employer)

Outcomes

A number of comments were provided in response to this question. However, rather than being matters for inclusion as additional exceptions, some of the suggestions  were  matters  for  the  Tribunal  to  decide  in  the  particular circumstances of the case. For example, if an employer requires employees

12. Exceptions - domestic service

Respondents were asked if any issues or problems would arise if the general exception for domestic service was removed from the current Law.

The draft Regulations would remove from the Discrimination Law the existing general exception for selection for domestic employment or work' (Schedule 2, paragraph 2F). An equivalent provision was included in the UK Race Relations Act but it was removed many years ago and was not included in the Equality Act. The question of whether it is appropriate to retain this exception in the Jersey Law has been raised in previous rounds of consultation and so the Minister decided to review the exception. The exception was initially included to avoid interfering in private household arrangements. However, cases in the UK have shown that domestic servants can be particularly vulnerable to abuse and exploitation.

Of the responses to the Minister's survey, 38% said that issues or problems would arise if the general exception for domestic service was removed from the current Law. Comments from respondents included the following;

"We fully support the rationale for removing this exception. However, we can see that it may be cause for concern for domestic employers particularly in relation to certain roles." (Law firm)

"No. The proposal to remove the exception for domestic service is a welcome step towards preventing exploitation of domestic workers." (Mike Steel)

"No – we need to work to best practice and if UK has already removed due to issues we should do so too." (Nikki Withe, HR & Training and Community Manager, LibertyBus)

"There have been several cases in the media (UK) in respect of abuse and exploitation of domestic employment therefore any possible loop hole' should be removed in order to prevent such acts occurring in Jersey." (JACS)

"I think this is not black and white. If a cleaner became disabled, and therefore  unable  to  clean  a  private  house  adequately,  I  don't necessarily think the employer should have to keep the cleaner on. I don't  think  this  is  the  same  as  bigger  business  and  larger companies.Maybe there is another way around this - i.e. a specific type of insurance cover, or centrally funded pot?" (Anonymous individual)

"It is important that domestic workers are included in the law. Although this involves private households they are still employees and should be protected." (Anonymous individual)

"The selection of, say, a cleaner or gardener seems to me to be a very personal thing largely about intrusion into family life. I do not see how the average householder could be expected to make adjustments to suit a range of disabilities." (Representative of a group that supports people with a disability or condition)

"A domestic home can't be expected to make accommodations such as changing its access routes for example for disabled applicant that would be unfair." (Anonymous employer)

"All  employees,  domestic  or  commercial  should  be  covered  and governed by the same laws. A domestic employee must have the same  rights  and  someone  doing  the  same  job  in  a  commercial environment." (Anonymous employer)

"JET full supports the removal of this exemption to protect those people  who  are  employed  within  domestic  settings."  (Jersey Employment Trust)

"More consideration needs to be given to this. A live-in in nanny is very different from a part time cleaner. One is in a situation where they can be abused or exploited, the other can simply leave the job.It also opens up a can of worms with regard to making a workplace environment suitable. While a business may need to take steps, even if at some expense, it cannot be right to force home owners to if disciminating against on grounds of a disability which would impede the ability to work.For instance, I would expect a Parish Hall to have a hearing loop. I cannot expect a home owner to have to install one." (Tony Bellows)