The Committee for Employment & Social Security - P.2020/41
The States are asked to decide:-
Whether, after consideration of the Policy Letter entitled "Proposals for a New Discrimination Ordinance" (dated 2nd March, 2020), they are of the opinion:-
1. To agree to the preparation of an Ordinance, under the provisions of section 1 of the Prevention of Discrimination (Enabling Provisions) (Bailiwick of Guernsey) Law, 2004 in relation to the prevention of discrimination on the grounds of disability, carer status and race in accordance with the policy proposals set out in this Policy Letter.
2. To agree that:
a. with the exception of the provisions referred to in paragraphs b. and c. below, the Ordinance referred to in Proposition 1 ("the Ordinance") shall come into force six months after its approval by the States,
b. the provisions in the Ordinance relating to discrimination complaints in the field of education shall come into force on a date to be appointed by regulations made by the Committee for Employment & Social Security, which date shall be after the date on which the Ordinance comes into force pursuant to paragraph a. above, and
c. the provisions in the Ordinance relating to a duty to make changes to physical features shall come into force on a date to be appointed by regulations made by the Committee for Employment & Social Security, which date shall be at least five years after the date on which the Ordinance comes into force pursuant to paragraph a. above.
3. To direct the Committee for Employment & Social Security to bring detailed policy proposals to expand the grounds covered in the Ordinance referred to in Proposition 1 to the States for consideration. This should be in accordance with the proposals and timeline set out in section 8.
4. To note the Committee for Employment & Social Security's intention to recommend, in phase 3 of the development of the Ordinance, the introduction of the right to equal pay for work of equal value in respect of sex, in accordance with the International Covenant on Economic, Social and Cultural Rights and in order to support the extension of the Convention on the Elimination of All Forms of Discrimination Against Women.
5. To direct the Committee for Education, Sport & Culture and the Committee for Employment & Social Security to work together to develop an appropriate adjudication mechanism for complaints with respect to disability discrimination in schools and preschools and for any discrimination complaints relating to States' school admissions and to note that any request for additional funding for this purpose will be submitted through the appropriate budget setting process.
6. To approve the transfer from the Budget Reserve to the 2020 revenue expenditure budget of the Committee for Employment & Social Security:
a. of £90,000 to fund an increase in the capacity of the Employment Relations Service, developing Rules of Procedure and a rolling training programme for the Employment and Discrimination Tribunal, programme management, and beginning to develop guidance and a code of practice, and
b. of £40,000 for conducting a survey on prejudice and discrimination and beginning to develop an approach to address issues identified through the survey (noting that the request for b. stands, even if the preparation of the Ordinance is not approved, in order to promote equality and prevent discrimination via cultural change).
7. To direct the Policy & Resources Committee to include specific additional funding in the recommended Cash Limits of the Committee for Employment & Social Security:
a. to fund the Employment and Equal Opportunities Service and the Employment and Discrimination Tribunal, estimated at £200,000 in 2021; £305,000 in 2022; and £325,000 from 2023 onwards, and
b. to fund proactive work to raise awareness and change attitudes in relation to prejudice and discrimination in the community, estimated at £45,000 per annum (noting that the request for b. stands even if the preparation of the Ordinance is not approved in order to promote equality and prevent discrimination via cultural change).
8. To approve the allocation from the Transformation and Transition Fund, or other source deemed appropriate by the Policy & Resources Committee, of £395,000 to fund project set-up costs and awareness raising about the legislative changes between 2021 and 2023.
9. To instruct Property Services to find suitable office accommodation for the Employment and Equal Opportunities Service to move to.
10. To amend the Employment and Discrimination Tribunal (Guernsey) Ordinance, 2005 to require Tribunal Chairs to be legally qualified, as set out in section 7.4.3 and appendix 6.
11. To prepare legislation outlining the powers and functions of the statutory official who will lead the Employment and Equal Opportunities Service and to amend existing employment and discrimination legislation in order to transfer any relevant powers to that statutory official (as outlined in section 7.4.2 and appendix 6).
12. To amend existing employment and discrimination legislation to ensure that a consistent approach is taken to offering pre-complaint conciliation with regards its effect on suspending the time limit for registering complaints and to enable other relevant time limits to be amended as may be considered appropriate.
13. To note the Committee for Employment & Social Security's intention to introduce Rules of Procedure for the Employment and Discrimination Tribunal by Order under the provisions of paragraph 3 of the Schedule to the Employment and Discrimination Tribunal (Guernsey) Ordinance, 2005.
14. To amend the Sex Discrimination (Employment) (Guernsey) Ordinance, 2005 to ensure, so far as appropriate, that the limits for financial compensation in that Ordinance are consistent with the limits set out in this Policy Letter and, so far as may be appropriate, to ensure consistency between the Sex Discrimination (Employment) (Guernsey) Ordinance, 2005 and the Ordinance with respect to civil penalties and criminal offences, as set out in section 10 and appendix 4.
15. To note that the Committee for Employment & Social Security shall have the power to prescribe by Regulation, inter alia:
a. exceptions to the Ordinance,
b. what is and is not a "physical feature" for the purposes of the Ordinance, and
c. when tenants can request improvements to accommodation in relation to the rights of tenants in residential accommodation.
16. To note that the Committee for Employment & Social Security will bring proposals to the States for the establishment, operation and funding of an "Access to Work Scheme" by the end of 2021 (see section 7).
17. To agree that policy work on the outdated legislation and the policy and legislation gaps identified in section 9 should be considered for prioritisation through the Future Guernsey Plan in the next States' term.
18. To repeal the discriminatory provisions relating to women in the following legislation, as set out in section 9.5:
• Loi ayant rapport á L'emploi de femmes, de jeunes personnes et d'enfants, 1926,
• The Quarries (Safety) Ordinance, 1954,
• The Safety of Employees (Growing Properties) Ordinance, 1954,
• The Safety of Employees (Miscellaneous Provisions) Ordinance, 1952.
19. To direct the preparation of such legislation as may be necessary to give effect to these Propositions, including consequential amendments to other legislation.
20. To direct the Committee for Employment & Social Security to conduct a post-implementation review of the effectiveness of the legislation for individuals, employers and service providers no later than two years after the implementation of the final phase of the legislation (including changes to physical features coming into effect), or earlier if there are significant issues with respect to the operation of the legislation.
The above Propositions have been submitted to Her Majesty's Procureur for advice on any legal or constitutional implications in accordance with Rule 4(1) of the Rules of Procedure of the States of Deliberation and their Committees.