Bants or Barbarous?
Dexter Flynn | 20/12/16
After the fallow month of August, we have certainly hit the ground running in Jersey this Autumn.
Of course, we had our by election. Two men, two women and Percy the parrot turned out to vote. Our newly elected Senator blamed “the Royal Square bubble” for voter apathy. I am not quite sure that this is the real reason.
Perhaps the problem is not voter apathy or the Royal Square bubble but simply an unfortunate consequence of the fact that the candidates and/or the process did not energise the voting public. Rather than blame the public, perhaps States Members and candidates need to look at themselves.
The big news story from a legal perspective was that the Jersey Employment and Discrimination Tribunal issued its first “fully reasoned decision” under the provisions of the 2014 Jersey Discrimination Law.
Two years after the law came into force and following the expenditure of hundreds of thousands of pounds, we have our first Judgment. Phew, the international community will be delighted to see that we are complying with our global obligations. Our international duty, of course, was one part of the sales pitch given to the States as to why we need the discrimination law and the subsequent regulations. The Chief Minister will await his certificate of excellence from the United Nations with unabated glee.
To be fair to the Tribunal, the Judgment is an extensive piece of work amounting to some 56 pages.
The Judgment confirms that the hearing involved seven witnesses. It took place over 4 days. All of the issues about which you have been warned were addressed. Leaving aside the unfair dismissal aspect of the complaint, the discrimination compensation amounted to £3,250. We are reminded of that hackneyed phrase “what price can you put on justice?”
It was, in part, the classic case of harassment arising from “workplace banter”.
I noted that the Jersey Evening Post ran a front page headline referring to what will be the infamous and macabre “napalm” joke. The Tribunal itself referred to a “longstanding culture of banter”. However, references such as: “they should burn all the gays” and “throw napalm from the roof” onto the Gay Pride march cannot, on any analysis, represent a playful and good humoured teasing remark which I understood to be the meaning of banter. This was offensive stuff.
The fact that people might regard such an exchange as “banter” is the fundamental problem. The terminology in this case was reprehensible. One of the owners of the business that was being taken to task refers to the fact that “it was all just nonsense, they were being ridiculous”. Clearly this is not office banter or work japes. It does highlight on an extreme level the trap into which employers and employees can fall.
Significantly from an employer’s perspective, the Tribunal noted that the owners of the business had received no training in employment law and had not required any of their staff to attend such training. They had failed to put in place any equality, diversity policies or raise awareness of such issues amongst their staff.
The Tribunal said this: “These actions [i.e. training] would have gone someway to ensuring that had they taken reasonable practical steps to prevent an act of discrimination taking place at work…. the First Respondent [the employer] was irresponsible in ignoring the impact of the discrimination law on the work place and also allowing these types of exchanges to take place”.
The Tribunal took the opportunity to list everything that the employer did wrong in connection with this action. Notwithstanding, it did find that there was no evidence to suggest that the employer’s actions were motivated consciously or sub-consciously by any prejudice. Again, the classic case of: “of course I am not a racist/sexist” argument. I am afraid this Judgment confirms that such an approach will not cut it. In this case, the employer was held liable to the Applicant for a 30% contribution.
Our first Discrimination Judgment in Jersey reaffirms the need for employers to ensure that there is proper training and awareness of these issues. As the Tribunal pointed out: “Employers have a defence if they can show that they took such steps as reasonably practicable to prevent the employee from doing that act”.
If you take such reasonable steps, then hopefully you, Mr Employer, will not be subject to front page headlines in the Jersey Evening Post, the disruption to your business as reflected in a 56 page Judgment and a financial penalty.
The Judgment is a timely reminder to all that this law does not simply give lip service to the politically correct. It is important. The consequences of its breach are grave. BEWARE.
Now back to the politicians, voter apathy, the candidates, hustings…….zzzzzzzzzzz.