Stephanie Habin, English Solicitor at Voisin Law, examines how the introduction of new regulations will protect those with a disability, and what the effects will be on businesses
Following a States of Jersey debate on 21 March, the Discrimination (Disability) Regulations 2018 will come into force on 1 September this year.
The regulations are another addition to the expanding raft of discrimination legislation that Jersey has adopted since the introduction of the Discrimination (Jersey) Law in 2014. As of 1 September 2018, disability will join race, sex and sexual orientation, gender reassignment, pregnancy and maternity, and age as protected characteristics under the law.
This newest addition accords with the States Disability Strategy for Jersey, launched by the Chief Minister’s department to promote equality for disabled islanders and ensure a good quality of life for those living in Jersey with a disability.
According to the strategy, 14 per cent of the island’s population is disabled – that’s 13,900 islanders – while two-thirds of all households in Jersey are estimated to include at least one person with a functional impairment.
With an ageing population, these figures are expected to rise and, understandably, the absence of protection for these individuals was a concern. The regulations bring Jersey up to date with other jurisdictions that have such protection in place and seek to ensure compliance with the International Convention on the Rights of Persons with Disabilities.
Unlike previous additions to the law, in drafting the regulations and defining disability, Jersey hasn’t ‘parachuted’ in the key provisions of the UK Equality Act 2010. While that focuses on the medical model in defining disability, Jersey has followed the social model used in the convention.
Rather than investigating what impact a person’s disability has on their ability to carry out day-to-day activities, the regulations focus on whether the impairment – be it physical, mental, intellectual or sensory – has the potential to affect a person’s participation in an activity, such as work or the use of a service.
To meet the definition of disability under the regulations, the impairment suffered by an individual must be long-term – namely that it's lasted for six months, is expected to last for six months or is expected to last for the rest of that individual’s life if that's expected to be less than six months.
As with the other protected characteristics, the regulations protect against discrimination in relation to disability in the context of employment, the provision of goods and services (whether paid or voluntary), education, access to and use of public premises, disposal or management of premises, clubs and requests for information.
The four types of prohibited conduct under the law, which will apply to disability, are:
• Direct discrimination – being treated less favourably because of a protected characteristic
• Indirect discrimination – where provision, criterion or practice is discriminatory in relation to the subject’s protected characteristic
• Victimisation – treating a person less favourably than others because they have made a complaint under the law or assisted another in making a complaint
• Harassment – unwanted conduct towards a person that is related to a protected characteristic and which has the purpose or effect of violating that person’s dignity; or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
The regulations also introduce a duty on those in the contexts described above, such as employers and those in the provision of goods and services, to make reasonable adjustments for those with disabilities in the following circumstances:
• Where a provision, criteria or practice causes a disadvantage – for example, working hours and sickness absence policies
• Where the absence of an auxiliary aid, such as information in other formats and hearing loops, causes a disadvantage
• Where a physical feature of a premises causes a disadvantage.
The obligation to make adjustments to physical features of premises seems to be attracting the most attention and putting business owners in fear that they will be obliged to make expensive revisions to their premises. A grace period has been granted by the States in respect of this requirement, which won’t come into force until 1 September 2020.
This is to give business owners the opportunity to investigate what changes they need to make (if any) and what changes they're permitted to make subject to planning permissions and building by-laws.
In determining whether reasonable steps have been taken to prevent or remove the disadvantage caused, regard will be given to the cost and size of the business, together with the extent to which any steps would be effective, practical and reasonably foreseeable.
The regulations will be a welcome addition to the law for those who have a disability. And it’s appropriate that Jersey brings itself into line with other jurisdictions by introducing legislation that will protect against this form of discrimination.