Prior to 1 September 2018 discrimination on the grounds of disability was not a protected characteristic in Jersey. Effective 1 September 2018, disability joined discrimination on the grounds of race, age, sex, sexual orientation, gender re-assignment, pregnancy and maternity as a set of protected characteristics which must not be infringed by employers. The change has brought Jersey closer to the UK positon as set out in the Equality Act 2010. The only UK protected characteristic now not covered by legislation in Jersey is religion or belief, or an individual’s lack of religion or belief.
Individuals with a disability will now have the right to make a complaint to the Employment and Discrimination Tribunal if they believe they have experienced discrimination. It is worth noting that discrimination can take place at a number of stages, even potentially prior to employment commencing.
The Discrimination (Jersey) Law 2013 imposes a duty on employers to make reasonable adjustments to help job applicants, employees and former employees with a disability in certain circumstances.
The law provides that an individual can avail themselves of the protected characteristic where they have one or more long term physical, mental, intellectual or sensory impairments which can adversely affect their ability to engage or participate in any activity in respect of which an act of discrimination is prohibited under the law. A long term impairment is one which has lasted (or is expected to last) for not less than 6 months or is expected to last until the end of the person’s life.
Discrimination can occur in 4 different ways:
- Direct discrimination – treatment of an individual less favourably than another person because of their disabilities or something arising as a consequence of their disability. For example providing a negative verbal reference because of a former employee’s disability-related absence;
- Indirect – the application of a provision, criterion or practice, that disadvantages people with a particular characteristic. For example having a company policy in place which provides all staff must attend head office to undertake a training course if they want to seek a promotion. This could be difficult for employees with a disability, and there is no reason why they could not video conference the training, or have the training session conducted at their office;
- Victimisation – This is when you are treated badly because you have made a complaint of discrimination. It can also occur if you are supporting a person without a disability who has made a complaint of discrimination. For example an employee has made a complaint of disability discrimination. The employer threatens to sack them unless they withdraw the complaint; and
- Harassment – occurs when someone treats you in a way that makes you feel humiliated, offended or degraded. For example a staff member with a disability is regularly sworn at and called names by colleagues at work because of their disability.
Disability Specific Claims
When dealing with disability discrimination, there are two specific claims employers are likely to encounter:-
- Discrimination arising from disability- this occurs where someone is treated ‘unfavourably’ because of something linked to their disability, but not because of the disability itself. For example, difficulties in using public transport.
- Failure to make ‘reasonable adjustments’- this occurs where an employer fails to make reasonable changes or modifications to their workplace for a job applicant or employee who has a disability. If adjustments are ‘reasonable’, an employer must make them to ensure its workplace or practices do not disadvantage a job applicant or employee with a disability already employed with the organisation. For example, failure to reallocate a duty an employee with a disability cannot undertake, e.g. reallocating the telephone duties of an applicant with hearing loss.
However, an employer will not be obliged to make reasonable adjustments unless it knows or ought reasonably to know that the individual in question has a disability and is likely to be placed at a substantial disadvantage because of their disability. It is for an employment tribunal to objectively determine whether a particular adjustment would have been reasonable to make in the circumstances.
When considering this, a tribunal will take into account matters such as whether the adjustment would have removed the disadvantage faced by the person with the disability, the cost of the adjustment in the light of the employer’s financial resources, and the disruption that the adjustment would have had on the employer’s activities.
The duty to make reasonable adjustments can arise where a physical feature of the employer’s premises puts a person with a disability at a substantial disadvantage in comparison with those who do not have a disability. The phrase “physical feature” can be defined as:
- A feature arising from the design or construction of a building;
- A feature of an approach to, exit from or access to a building;
- A fixture or fitting, furniture, furnishings, materials, equipment or other chattels, in or on premises;
- Any other physical element or quality.
An example of this could be an employer having clear glass doors at the end of a corridor that could present a hazard for a visually impaired worker. This is a substantial disadvantage caused by the physical features of the workplace.
The duty to make reasonable adjustments to premises will apply in Jersey from 1 September 2020 to give businesses plenty time to plan any necessary changes.
An employer does not have to automatically make adjustments once a job applicant or employee has a disability. For the duty to arise, the job applicant or employee must also be placed at a “substantial disadvantage” in comparison with persons who do not have a disability. A substantial disadvantage is anything that is more than minor or trivial. The substantial disadvantage must be caused by a provision, criterion or practice, physical feature of the premises or the lack of provision of an auxiliary aid that would assist the person with a disability. The test for substantial disadvantage is based on the facts of the case. It is worth keeping in mind that the aim of the adjustments the employer makes is to remove or reduce the substantial disadvantage.
Knowledge of disability
It is important to note that the obligation imposed by the law is not to make adjustments to cater for the employment of people with disabilities generally. The duty arises in relation to particular identifiable individual. An employer is not under a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know, that a person has (or has had) a disability and is likely to be placed at a substantial disadvantage.
An employer can also be placed under a duty to make reasonable adjustments on the basis it ought to have known both that the employee had a disability and that the disability could impact the employee’s ability to carry out day to day tasks. An example of a situation where the employer could be deemed to have constructive knowledge of an employee’s disability is where a line manager sees or is made aware of the employee’s application for disabled tax credit or income support.
The more challenging situation for employers is where the employee discloses the disability to a colleague or there is office gossip about a potential disability e.g. “John is blind as a bat… have you seen how large his email font is” . We suspect argued correctly this could give the employer the sufficient knowledge to satisfy the “ought to have known” test that John could have a recognised disability.
Other examples where the Employer “ought to have known”
A worker who deals with customers by phone at a call centre has depression which sometimes causes her to cry at work. She has difficulty dealing with customer enquiries when the symptoms of her depression are severe. It is likely to be reasonable for the employer to discuss with the worker whether her crying is connected to a disability and whether a reasonable adjustment could be made to her working arrangements.
A man who has depression has been at a particular workplace for two years. He has a good attendance and performance record. In recent weeks, however, he has become emotional and upset at work for no apparent reason. He has also been repeatedly late for work and has made some mistakes in his work. The sudden deterioration in the worker’s time-keeping and performance and the change in his behaviour at work should have alerted the employer to the possibility that these were connected to a disability.
Examples of reasonable adjustments
Making adjustments to premises
For example, widening a doorway, providing a ramp or moving furniture for a wheelchair user.
Providing information in accessible formats
This could include producing instructions and manuals in Braille or on audio tape, use of larger font on internal emails or a different coloured paper.
Altering the hours of working or training for a worker with a disability
This could include allowing a person with a disability to work flexible hours to enable him to have additional breaks to overcome fatigue arising from his disability, or permitting part-time working or different working hours to avoid the need to travel in the rush hour.
Assigning a different place of work or training, or arranging home working for a worker with a disability
For example, relocating an employee’s work station to an accessible place.
Acquiring or modifying equipment
An employer might have to provide special equipment (such as an adapted keyboard for someone with arthritis or a large screen for a worker with a visual impairment).
Providing supervision or other support
This could include providing a support worker, or arranging help from a trained colleague, for someone whose disability leads to uncertainty or lack of confidence in unfamiliar situations, such as a training course.
Modifying disciplinary or grievance procedure
For example, a woman with a learning disability is allowed to take a friend (who does not work with her) to act as an advocate at a meeting with her employer about a grievance. The employer also ensures that the meeting is conducted in such a way so that the woman is not patronised or disadvantaged.
Reasonableness of adjustments
An employer will not breach the duty to make adjustments unless it fails to make an adjustment which is “reasonable”. This is a fact-sensitive question. The law does not set out a prescribed list of reasonable adjustments. However, where a tribunal has to consider these issues it will take account of:
- The extent the substantial disadvantage was reasonably foreseeable;
- The proportionality of any steps taken;
- The costs and practicalities of such steps; and
- Nature of and size and administrative resources available to the employer.
Where an employee alleges a breach of the reasonable adjustments duty, it is important to establish at an early stage of proceedings what each party contends are the potential adjustments at issue. An employer should ask the employee to particularise every adjustment that they will rely on at the hearing. The employer should then seek to demonstrate, using expert or other evidence, that each suggested adjustment would probably not have worked or would have been impracticable. There is no objective justification defence available in respect of an employer’s failure to make reasonable adjustments. The proposed adjustments were either reasonable or they were not.
We hope you have enjoyed this publication! We would like to thank all our interviewees for their invaluable assistance and support with this initiative. If you are an employer reading this, we can offer you help with the following:
- Making sure your employment policies and procedures are compliant with the Discrimination and Employment Laws in Jersey;
- Advising you on reasonable adjustments you may need to consider based on your work force, clients, customers and others visiting your premises;
- Advice on any disability-specific issue you may be encountering in your work place; and
- Provide training to your managers and staff on the discrimination law generally and, more specifically, on the protected characteristic of disability.