The Channel Islands are Crown dependencies and yet they currently lag behind the UK and Europe when it comes to discrimination laws. Author Allan Watts asked two leading employment lawyers from Islands-based lawyers Mourant Ozannes why.
“If you prick us, do we not bleed? If you tickle us, do we not laugh? You might be familiar with this quote from Shakespeare’s The Merchant of Venice, though you probably would not recognise the sentiment in our modern Omni-tolerant society, especially when it comes to workplace practices. Had Shylock been alive today, he would have the full protection of Britain’s anti-discrimination law on his side. If the Channel Islands were his Rialto, however, he might have to wait a little longer to get a hearing. The Channel Islands, which are part of the British Isles – though not of the United Kingdom or Europe – enjoy an international reputation for being outward-thinking and well-regulated; yet their statute books currently lack the full gamut of discrimination legislation that workers in other countries enjoy. All that is about to change, with the Governments of the two largest Islands, Jersey and Guernsey, working towards introducing new laws this year and next. Guernsey has an umbrella law in place and has already introduced sex discrimination regulations; this summer the States of Guernsey will consider adding disability regulations, though there is presently no indication that politicians will go further than that for the foreseeable future.
Jersey currently has no umbrella law, but should rectify that soon, with race regulations expected to come into force early in 2014, and it is widely anticipated that sex discrimination rules will follow sometime thereafter. It may seem surprising that these internationally respected finance centres are lagging behind in this area. According to Jessica Roland and Helen Ruelle, who lead the employment team at law firm Mourant Ozannes, it's possibly because there has, in part, not been the political will, but also because the majority of Channel Island employers already follow best practice without the underlying legislation: “I think there has been a reticence to regulate and an underlying assumption, that as we have always been Islands of full employment we don’t suffer these sort of issues,” says Jessica Roland. “Equally, you have to remember that most Channel Island employers, especially those that are part of larger international organisations, are already acting in a lawful way and so issues very rarely arise.”
Some business groups are concerned that introducing discrimination laws could stifle economic recovery at what is a particularly fragile time. Helen Ruelle understands those concerns but thinks their fears are misplaced: “I don’t believe there is evidence from other jurisdictions that companies and organisations suffer unduly from the introduction of discrimination laws. In some cases, such as with disability regulations, there may be some costs associated with adapting premises for access, but by and large businesses adjust quite seamlessly.” As Jessica Roland says: “In fact, it could be argued that not having discrimination legislation in place is the real barrier to growth. From a perception point of view it makes us look very old-fashioned. It’s not about saying we are discriminatory, it’s what it says about us as Islands.” Helen Ruelle agrees: “We work with many HR directors of global institutions and they find this whole situation difficult to reconcile. We are not talking about advanced employment law here – it is a basic right not to be discriminated against in the workplace”. As new legislation is introduced Helen Ruelle says employers will need to look to their policies and procedures to make sure they are fit for purpose.
The same issues were raised when the Islands introduced unfair dismissal legislation but inevitably the employer/employee environment found its own balance as companies adapted and improved their working practices. Although there is no guarantee that the Islands will bring in new legislation this year, Helen Ruelle and Jessica Roland believe there is a compelling argument for acting sooner rather than later. They say the statistics prove that businesses prosper when they are open to new ideas and employ a diverse workforce. The ultimate beneficiary of a modern legislative framework to support the best practice already being followed will be the reputation of the Islands and that, not to put too fine a point on it, will be in everyone’s best interest.
