When the Prevention of Discrimination (Guernsey) Ordinance 2022 (“Ordinance”) comes into force on 1 October 2023, it will make it unlawful to discriminate against a person on five “protected grounds”. The new protected grounds are disability, race, religion or belief, sexual orientation and carer status.
The Ordinance has attracted a large amount of media comment, a lot of which has not always been positive, but in broad terms it will largely bring Guernsey’s discrimination law in line with the UK, Jersey and the Isle of Man, who already have in place comprehensive equality frameworks. However, where Guernsey has gone further than the UK and the other Crown Dependencies is having a protected ground specifically for individuals with caring responsibilities, and so this poses some interesting questions for all employers (regardless of scale or resources) that they will not have had to consider before.
WHY SHOULD CARER STATUS BE A PROTECTED GROUND?
While Guernsey has often lagged behind the UK in terms of employment protections, the introduction of the Ordinance allows Guernsey to be a pioneer around a developing area of law – whether it should be is of course another question. In the UK, there has long been a clamour to better support people with caring responsibilities, and employment rights groups argue that the existing legislative framework is not fit for purpose. It’s estimated that more than 2 million UK employees have to balance their work alongside unpaid caring responsibilities for family members. Whilst the numbers in Guernsey are proportionately smaller (and there has not been the same level of analysis), the issues employees will face are ultimately the same. Given that Guernsey has an ageing population, these issues will only become more prevalent in the years to come.
There has been some change in the UK in this area, such as the recent introduction of the Carer’s Leave Act. This gained Royal Assent on 24 May 2023 and gave unpaid carers a right to 1 week of flexible unpaid leave a year to care for a dependant with a long-term care need. With this said, the UK’s Equality Act still does not recognise carer status as a protected characteristic. Although UK employees that wish to bring discrimination claims linked to their caring responsibilities can still potentially do so, it is more complicated as the claim is brought on the basis that they have been discriminated against on the grounds of their “association” with a disabled person (i.e. the person they have caring responsibilities for). Guernsey’s new Ordinance will greatly simplify that process, and extend the protection to cover claims of direct and indirect discrimination on the grounds of carer status, as well as giving protection in relation to harassment.
WHO HAS CARER STATUS?
A person will have the protected ground of carer status if they provide care or support on a continuing, regular or frequent basis for another person with the protected ground of disability, and that disability is of a nature which requires continuing, regular or frequent care or support of the kind that the carer is providing and they live with or are a close relative of the person who needs care.
A close relative for these purposes means any of the following relationships:
- Parent or child of a spouse or partner
The definition restricts the protected ground to employees that care for an individual who is a close relative, or lives with the person who receives the care. The protection would therefore not extend to an employee that provides care to a close family friend that they do not live with, or a neighbour.
The person receiving the care must also meet the criteria of having a disability as defined in the Ordinance, which is that they have an impairment that lasts or is expected to last for at least 6 months (or until the end of the person’s life).
The key issue around carer status will focus on how the interpretation of what amounts to care on a “continuing, regular, or frequent basis”. For the other protected grounds that are due to be introduced, the Tribunal will be able to refer to cases from the UK Employment Tribunal for guidance, but that will not be possible in the case of carer status as it is a novel concept. Over time it is likely the case law will develop, but it is not anticipated that this will be a high bar for employees to overcome. Whilst one-off requirements to provide care will clearly not pass this threshold, obvious examples would include regular trips with an elderly relative to the hospital for treatment of a condition, even if they are infrequent, or frequent ad hoc time off work to care for a child with complex needs.
WHERE WILL EMPLOYERS NEED TO CONSIDER CARER STATUS?
The two most obvious occasions employers will need to consider carer status will be when they receive flexible working requests or requests for emergency time off to care for a relative. In both instances, if someone satisfies the requirements to be classified as a carer, then this will give rise to issues of potential indirect discrimination. That does not mean an employer cannot refuse a request from an employee who is seeking flexibility to care for a relative, but it does mean that, if it is unable to objectively justify its actions, then this will amount to unlawful discrimination.
The Ordinance will not simply be limited to occasions where carers are making requests, but can cover other areas of the employment relationship too. As such, all employers (even those with extensive UK HR departments) will need to update their equal opportunities policies and ensure there is training to raise awareness of the concept of carer status. There are obviously broader issues of diversity and inclusion within the workplace but questions that employers should consider around carer status would be:
- Are carers made aware of the company’s policies around flexible working?
- If carers are given time off, how are they treated on their return?
- Are carers able to attend work social functions?
- Are carers disadvantaged in pay and/or progression because of their responsibilities?
WHAT DO YOU NEED TO DO?
The vast majority of compliance with the Ordinance is based around common sense but clearly from 1 October onwards there will be an increased risk for employers around these issues. Successful complaints of discrimination due to carer status have the potential for an employee to be awarded up to 6 months’ pay, together with an amount payable for injury to feelings up to £10,000, albeit more often the real risk is the reputational damage to an employer’s business.
In this context, it is now a crucial time for employers to ensure that their HR policies are fully updated to reflect the changes that the Ordinance will bring and that managers are provided with sufficient training around the Ordinance’s introduction. Further guidance on the new Ordinance can be accessed on the new Employment and Equal Opportunities Service Website, which was produced by the States of Guernsey working with Appleby. In addition to the official guides, Appleby have prepared their own short Guernsey Discrimination Guide to the impact of the Ordinance aimed at employers.
For further information, please contact:
Richard Sheldon, Partner, Appleby