Introduction

The Jersey Employment and Discrimination Tribunal recently published a case which provides helpful guidance on the Discrimination (Jersey) Law 2013.

For the first time, key principles of the law have been considered.

The case highlights some important points for businesses to remember and some areas of the law have been clarified, particularly the following:

1. Managers, and possibly staff, should be properly trained.
2. Correct and fair processes must be followed.
3. The burden is on the employee to prove his or her claim, not the employer.
4. The £10,000 limit per complaint applies to each type of complaint (i.e., direct discrimination, indirect discrimination or harassment).

Facts

1. The employee was gay but had not come out to his colleagues. His claim arose out of comments made by two other employees about the Jersey Pride march in September 2015. The comments advocated and condoned violence towards the lesbian, gay, bisexual and transgender community.
2. The comments were repeated to the applicant, who was upset by them and left work. He then brought a complaint about the other employees.
3. He was subsequently made redundant and during his last months had some of his shifts reduced.

Decision

1. The tribunal held that the applicant had been subject to direct discrimination and victimisation in light of the way in which he was made redundant and because his shifts had changed. His employer and the other employees involved were also held responsible for harassment due to their comments. He received £1,800 for the victimisation, £1,450 for the harassment (split between the employer and two co-workers) and £1,072.80 for unfair dismissal.

About the harassment claim

1. About the harassment claim an interesting point arose about the use of information obtained from social media.

2. For an employee to establish the claim for harassment, they must show that he or she was offended by a remark or insult. In this regard, evidence about the employee’s conduct may potentially be relevant. In this case, the tribunal heard evidence that the applicant had previously been involved in workplace exchanges with the other employees, commonly referred to by them as “banter”.

3. These exchanges referred to race, sex and sexual practices. It also occasionally referred to sexual orientation.

4. The tribunal also had printouts of the applicant’s Facebook pages that were potentially relevant.

5. However, it refused to consider this evidence, citing uncertainty over the privacy settings on these pages. This is surprising, as an employee who brings a claim must provide all evidence that both supports and harms his or her case. In principle, this would include social media, regardless of the privacy settings (which should not of themselves obviate the disclosure obligation).

Key points – The following points are key for businesses to remember.

1. Training is fundamental
   1. The company had undertaken no discrimination training, nor had it established any policies for its staff. As a result, the business could not avoid liability for its employees’ comments. The company was made to pay £435 of the £1,450 for the harassment. Had it trained its staff, it could have argued that it not be liable for any of the award.

2. Processes must be followed
   1. The company had a genuine redundancy situation as it was closing down one store.
   2. However, because it failed to follow a proper redundancy process, the tribunal took the view that the reason for redundancy was because the employee had brought a sexual orientation discrimination complaint. The company could not rebut this because of its failure to establish a proper redundancy process.
   3. This allowed the employee not only to receive £1,800 for the victimisation but also to claim unfair dismissal even though he had worked for the business for less than a year. He received £1,072.80 for the latter claim.

3. Employees must prove their claim
   1. About the direct discrimination claim, the tribunal held that Jersey has no equivalent to the “reverse burden of proof” provisions found in English statute (where there is a presumption of discrimination, and it is for the employer to produce positive evidence to the contrary).
   2. In Jersey, the employee must establish on a balance of probabilities that he or she was treated less favourably than someone without his or her protected characteristic.

4. £10,000 limit applies to each complaint
   1. The employee brought three complaints: direct discrimination, harassment and victimisation.
   2. The tribunal confirmed that he would have been able to claim up to £10,000 for each of these claims, making a maximum possible claim of £30,000.
   3. Had there been an indirect discrimination claim, this could have increased to £40,000.
   4. This was a point that needed to be determined. This decision has removed the misapprehension that a claim is limited to £10,000 as, in reality, the total amount may be significantly higher.

Comment

1. This decision is a helpful guide on dealing with discrimination claims. It is a reminder that with proper policies, procedures and training, discrimination claims can be avoided.