Irvine Maccabe reviews new statutory provisions outlawing race discrimination in Jersey

In 2003 the Jersey legislature, the States, passed the Employment (Jersey) Law. In part, this introduced the English concept of unfair dismissal into Jersey law. Liability was founded on wording lifted from section 98 of the Employment Rights Act 1996.  A tariff scale for infringement was introduced, based on length of service. Then re-instatement and re-engagement were introduced as potential remedies. Royal Court (ie appellate) case law (such as Voisin v Brown 2007 JLR 141) confirmed that Jersey law would follow English jurisprudence on the principles to be applied to liability, as it had developed since unfair dismissal was introduced in England and Wales in 1971. The Royal Court was however careful to assert that it would depart from any English authority that it considered mistaken or wrong, as you would expect from a legislature and legal system separate and distinct from the United Kingdom.

The States have now passed the Discrimination (Jersey) Law 2013. It has a commencement date of 1st September. It introduces the concepts of direct and indirect discrimination (Articles 6 and 7) , victimization and harassment (Articles 27 and 28), based on protected characteristics. Part 3 of the Law applies to paid employment. The discrimination concepts are in terms identical to ss 13, 19, 26 and 27 of the Equality Act 2010, except where those sections make reference to sex or gender re-assignment because these characteristics not protected under the Law.

The only protected characteristic covered is race, as defined in Schedule 1 of the Law. That definition is the same as s 9 of the Equality Act, except it adds :“(6) For the purposes of this Law “national origins” includes being of Jersey origin”. This is interesting for two (and possibly three) reasons.

First, because even the Race Discrimination Framework Directive (Council Directive 2000/43 EC) does not apply to discrimination on the grounds of nationality.  Whilst the United Kingdom has form for gold-plating domestic social legislation to include matters not covered by European Directives, Jersey is not a member of the European Union and has no discernible overly Europhile legislative tendencies. Secondly, because of the demographic make up in Jersey: About 50% of the current population is Jersey born and 31% British born, 7% in Portugal or Madeira, 8% in the remainder of continental Europe, and 4% elsewhere. It would be hard to see Jersey as a nation (it is a personal possession of the reigning monarch, as Duke of Normandy), or for that matter, Jersey islanders as constituting an ethnic group. It seems entirely possible that this explains the deeming provision, for otherwise it might not be possible to discriminate against the Jersey islanders in a claim brought in Jersey itself. That would be unfortunate.

The financial remedies for infringement are modest. Under Article 42 (1) (b) (i), an order to pay up to £10,000 for financial loss, and under (b) (ii) up to £5,000 for “hurt and distress”. All provided the total sum under (b) (i) and (ii) does not exceed £10,000. One can instantly see, therefore, that one area where the Jersey Tribunal will be not be following the English Jurisdiction will be in the levels of compensation awarded under the Vento bands (as amended).

As students of history and geography will know, there are several other islands covered under the convenient, but constitutionally irrelevant, description of “the Channel Islands”. These comprise the Bailiwick of Guernsey, another Crown dependency, and include the inhabited islands of Herm, Sark, Alderney, Brecqhou  and Jethou. There is a definite rivalry between the two Bailiwicks across all fields of trade and  endeavour, as anyone who has visited them can confirm.

Is there then a third possible reason?  Do the native islanders of the Bailiwick of Guernsey fall within the definition of race in schedule 1 of the Law? Would a discrimination claim by a Guernsey islander unfortunately fail in Jersey for want of a discrete deeming provision in the Law? I am sure that there are Jersey advocates who cannot wait to get their teeth into that one……..

Irvine Maccabe advises and appears in the Jersey Employment Tribunal, and regularly advises on employment and employment related claims and appeals in the Royal Court. For a recent example where he assisted, see Vosins Department Store Limited v Soares 2014 JLR 004, where Gerald Voisin reprised his success in appealing against Mr Brown in 2007 (see article) by successfully appealing a finding of unfair dismissal against him, albeit now in his incorporated manifestation.

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