The arrival of the Discrimination (Disability) (Jersey) Regulations 2018 on 1 September completes the States’ anti-discrimination legislative programme which began in 2014. It is arguably the most significant addition to the law, as it is more demanding than the preceding regulations relating to race, sex and age, and can make for budgetary outlay.
The ‘mischief’ of the law, says the States, is to secure a good quality of life and to reduce the inequality of well-being between disabled and non-disabled Islanders which empirical evidence reveals. For those who own or run a business, the five need-to-know points are:
1. Social model: Jersey has (radically) adopted a ‘social model’ i.e. a model that says disability is caused by the way society is organised, rather than by a person’s impairment. It looks at ways of removing barriers that restrict life choices for disabled people. Gone are the days of arguing over who’s entitled to help. Enter the brave new world of asking ‘how can we help?’.
2. Wide definition of ‘disability’: It follows that Jersey has adopted and (inimitably) tweaked the UN definition of ‘disability’. Here, ‘disability’ is simpler to prove and wider: a long-term impairment that could affect you (addictions are not excluded) gets you home. The official States’ figure estimating 14% of Islanders as ‘disabled’ (based on the narrow UK definition) is highly likely to be an understatement even before one factors in addictions on an island.
3. Reasonable adjustments: Disability triggers six statutory duties prohibiting discrimination. The most pivotal of these, and the key difference between this law and its predecessors, is the obligation on business to take positive action in the form of reasonable adjustments even where this can result in more favourable treatment. The duty to make these reasonable adjustments applies to a business’s arrangements, premises and lack of auxiliary aids, but the key one everyone is talking about is the need to alter premises. Businesses have two years to (literally) get their shop in order and this requires planning and, invariably, hard cash. If you haven’t already, get an access audit done as soon as possible as construction projects are notoriously time-consuming.
4. Avoiding liability: To avoid liability, therefore, a business needs to have a handle on anyone with a long-term impairment before they take action in relation to them as any unlawful acts risk litigation and personal liability. Defences and exceptions are few and hard to discharge because – and were you paying attention? – the social model dictates a ‘can do’ approach, not avoidance.
5. Awareness: Finally, the key to mastering these challenges (and the opportunities of possibly securing the benefits of new talent, efficiencies and revenue) is proactivity. Businesses will be on the front foot if they engage, audit, and keep investigating how they can help disabled staff at work and cliental in receipt of their goods and services. Who knows? With latest States’ statistics showing a fall in Jersey productivity and the persistent skills shortage, it could be a win-win.
Sharon Peacock is Technical Director of Law At Work (Channel Islands) Limited and specialises in employment relations and discrimination for businesses. She has worked in Cambridge, London and Paris.
