DRAFT EMPLOYMENT AND DISCRIMINATION TRIBUNAL (JERSEY) REGULATIONS 201-
Summary
The draft Employment and Discrimination Tribunal (Jersey) Regulations 201- (the ‘draft Tribunal Regulations’) would replace the Employment Tribunal (Jersey) Regulations 2005 (the ‘2005 Tribunal Regulations’) from 1 September 2014.
The Discrimination (Jersey) Law 2013 (the ‘Discrimination Law’) was adopted by the States of Jersey on 14 May 2013, sanctioned by Order of Her Majesty in Council on 9 October 2013 and registered by the Royal Court on 18 October 2013. Subject to States approval, an appointed day act will bring the Discrimination Law into force on 1 September 2014.
The Discrimination Law is an overarching law that provides a framework for protection against discrimination and it includes ‘race’ as the first protected characteristic. Full details of the history and development of the legislation were set out in the States Proposition for the draft Discrimination (Jersey) Law 201- (P.6/2013[1]).
The Discrimination Law will amend Article 81 of the Employment (Jersey) Law 2003 to give the Jersey Employment Tribunal (the ‘Tribunal’) responsibility for hearing complaints brought under the Discrimination Law, as well as complaints brought under the Employment Law. It has been necessary therefore to review and amend the 2005 Tribunal Regulations to ensure that appropriate provision is made for that extended jurisdiction in relation to the appointment of Employment Tribunal members and in respect of the constitution of the Tribunal for a hearing.
Specific changes
Subject to States approval, the draft Tribunal Regulations would replace the necessary provisions of the existing 2005 Tribunal Regulations and would introduce the following new provisions;
- In addition to the current Tribunal members[2], a pool of between 2 and 8 discrimination lay members will be appointed who have knowledge or experience of, or interest in, equality and discrimination matters generally or discrimination and specific protected characteristics.
- Where a panel of three members is formed to hear an employment related discrimination complaint, the panel will consist of the Chairman or a Deputy Chairman and two lay members; one employee representative side member and one employer representative side member, chosen by rotation. It is important that the employer/employee balance is retained in employment related discrimination cases.
- Where a panel is formed to hear a non-employment related discrimination complaint (e.g. housing, services or education), the panel will consist of the Chairman or a Deputy Chairman and two members from the new pool of discrimination lay members, chosen by rotation. The employer/employee balance is not required in such a case.
- Provisions are made for transition from the 2005 Tribunal Regulations to the draft Tribunal Regulations, including for the continuation of a hearing, for recruitment that has been started but not completed, for the continuation of existing members’ terms of office, and for the delivery of the annual report.
- The members of the Tribunal are prescribed as States’ appointees and holders of States’ offices for the purposes of Part 4 of the Employment of States of Jersey Employees (Jersey) Law 2005. This gives the Jersey Appointments Commission the authority to be involved in the appointments process.
- New and re-appointed Tribunal members will be required to take a standard oath before the Royal Court.
Impact on the Tribunal
Article 16 of the Interpretation (Jersey) Law 1954 (Exercise of statutory powers before commencement of enactment) provides the power to take such preparatory steps as are necessary in order for the Tribunal to be up and running from the commencement date. As a necessary preparatory step, the recruitment process for up to 8 discrimination lay members can begin as soon as the draft Tribunal Regulations have been adopted by the States. It is intended that recruitment will begin in mid 2014 to allow time for an open recruitment process and training of new members. Both the new and existing members of the Tribunal will receive Discrimination Law training.
The necessary timescales involved in the parties making and responding to a Tribunal complaint means that it is unlikely that any race discrimination complaints will be heard by the Tribunal in 2014. Based on the experiences of the UK, the number of complaints each year is expected to be relatively low;
- For the year April 2012 to March 2013[3], the UK Employment Tribunal received 4,828 race discrimination complaints out of a total of 356,979 complaints contained in Tribunal claims in that year[4]. The proportion of race discrimination complaints is therefore around 1.5 percent of the total number of complaints. The Jersey Employment Tribunal received 335 complaints contained in Tribunal claims in the year 2012, so proportionately we could expect around 5 race discrimination complaints each year.
- The number of race discrimination complaints to UK Employment Tribunals is equivalent to around 10 percent of the number of unfair dismissal complaints[5]. If that percentage is applied to the number of unfair dismissal complaints received by the Jersey Employment Tribunal - 151 in the year 2012 - the Tribunal could expect to receive around 15 race discrimination complaints each year.
It is anticipated that a race discrimination complaint may be submitted in conjunction with other complaints, such as unfair dismissal, potentially making those Tribunal hearings more complex and lengthy. However, it is anticipated that, as with complaints under the Employment Law, the majority will be resolved before they reach a hearing. According to its annual report for 2012, 80.7 percent of the 157 Employment Tribunal cases forwarded to JACS by the Tribunal were settled by JACS conciliation.
Financial and manpower implications
The following financial and manpower implications were included in the Proposition to the States (P.6/2013), lodged in January 2013. No additional financial or manpower implications have been identified since that date.
Advice, conciliation and enforcement - In 2015, costs are estimated to be £200,000 which includes the full year cost of enforcing the Law via the Tribunal (including Tribunal members pay for additional hearings and the increased usage of the service generally), the advisory services provided by JACS and CAB, and the costs of continuing to develop and prepare legislation for further characteristics. In subsequent years, enforcement and advisory costs are expected to increase slightly as each new characteristic is introduced, up to a maximum cost of £300,000 once all of the Regulations are in place.
The above costs will be met from within resources approved in the Medium Term Financial Plan (MTFP) and carry-forward funds.
Manpower – It is anticipated that the Judicial Greffe (which is responsible for the administration costs of enforcing the draft Law via the Tribunal) will require one additional part-time administrative post, at a maximum of Grade 8, to deal with the additional Tribunal workload and hearings from 2015.
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