UNITED NATIONS CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
Report by the Government of Jersey to the Committee on the Elimination of Racial Discrimination (CERD) for the period 2011 - 2014
JERSEY
The following report sets out progress by the government of Jersey since 2011 regarding implementation of the International Convention on the Elimination of All Forms of Racial Discrimination.
Legislation
Discrimination (Jersey) Law 200-
On 14 May 2013, the States of Jersey adopted the Discrimination (Jersey) Law 2013 which, following Royal Assent, came into force on 1 September 2014.
The Law is overarching legislation that provides a framework for protection against discrimination and it includes ‘race’ as the first protected characteristic. The Law is available at -http://www.jerseylaw.je/Law/display.aspx?url=lawsinforce%2fhtm%2fLawFiles%2f2013%2fL-10-2013.htm
The Law defines direct discrimination (Article 6) and indirect discrimination (Article 7):
- A person directly discriminates against another person if he or she treats that person less favourably than another person because of a particular characteristic.
- A person indirectly discriminates against another person where they apply a provision, criterion or practice, which the person cannot show to be a proportionate means of achieving a legitimate aim, that disadvantages (or would, if applied, disadvantage) people with a particular characteristic.
Victimisation (Article 27) and Harassment (Article 28) are also defined as forms of discrimination:
- Victimisation – the draft Law is intended to protect those who raise a complaint of discrimination (or assist others in doing so) from suffering less favourable treatment as a result.
- Harassment is unlawful in the same situations (such as the workplace or the provision of goods and services) as those in which direct and indirect discrimination are prohibited.
Definition of race discrimination
Race is a protected characteristic that is protected under the Law. A person has the protected characteristic of race as defined within one or more of the following (Schedule 1):
• Colour
• Nationality
• Ethnic origin
• National origin, which includes being of Jersey origin.
Scope of the legislation
Parts 3 to 5 of the draft Law set out the areas in which discriminatory acts are prohibited. These are:
1. Paid work including recruitment, the terms on which employment is offered and the termination of employment (Articles 9 and 10)
2. Contract workers (Article 11)
3. Partnerships (Article 12)
4. Professional or trade organisations (Article 13)
5. Professional bodies (Article 14)
6. Vocational training (Article 15)
7. Employment agencies (Article 16)
8. Voluntary work (Articles 17 to 20)
9. Education (Article 21)
10. Goods, facilities and services (Article 22)
11. Access to and use of public premises (Article 23)
12. Disposal or management of premises, e.g. letting property (Article 24)
13. Clubs (Article 25).
Exceptions
The Law (Schedule 2) provides certain exceptions where an act that might otherwise amount to prohibited discrimination will not be treated as such under the draft Law, for example:
- generally, acts done under legislative or judicial authority (Schedule 2, Part 1, Paragraph 1),
- specifically, for example, recruitment of a specified nationality to play in a national football team (Schedule 2, Part 2, Paragraph 6).
Enforcement
The Law reforms the role of the existing Employment Tribunal as the Employment and Discrimination Tribunal (the ‘Tribunal’). The Tribunal will have the jurisdiction to hear complaints about acts of discrimination that occur in all areas, whether in the workplace or otherwise (Article 36). An amendment to the Employment Tribunal (Jersey) Regulations 2005 ensures that the Tribunal’s constitution, membership and administration reflect this change.
A complaint must be made to the Tribunal within 8 weeks of the act of discrimination. Where there is a series of discriminatory acts, the complaint must be made within 8 weeks of the last act (Article 37).
All complaints will be referred for conciliation or mediation, if both parties agree:
- If the complaint relates to employment, to Jersey Advisory and Conciliation Service for conciliation (Article 38); and
- If the complaint does not relate to employment, to a person who is qualified in conducting conciliation or mediation (Article 39).
If the parties do not agree to conciliation, or if conciliation is not successful, a complaint is referred to the Tribunal (Article 41). A complainant will need to demonstrate to the Tribunal that, on the balance of probabilities, he or she has been discriminated against.
Remedies
If the Tribunal finds that a complaint has been proved, it may do any, or all, of the following three things (Article 42);
1. Make an order declaring the rights of the complainant and the respondent;
2. Order compensation of up to a maximum of £10,000 for any financial loss and up to a maximum of £5,000 for hurt and distress, subject to an overall limit of £10,000 covering the entirety of the award of compensation; and
3. Recommend that the respondent takes certain action within a specified period of time for the purpose of reducing the adverse effect of the act of discrimination on the particular complainant.
The cap on compensation has been set at £10,000, but may be subject to review in the future. The States may, by Regulation, amend the maximum level of compensation payable or introduce different levels of compensation for financial loss, or for hurt and distress.
Prevalence of racial discrimination in Jersey
Jersey Annual Social Survey
The States of Jersey Statistics Unit included questions about discrimination in the 2012 Jersey Annual Social Survey (JASS). The findings included the following:
- Nationality - Nine percent of adults reported that they had been discriminated against on grounds of nationality in the previous 12 months. Thirty-seven percent of those born in Portugal or Madeira, 28 percent of those born in Poland, 21 percent of those born in another European country and 6 percent of those born in Jersey or elsewhere in the British Isles reported having been discriminated against in Jersey on grounds of race or nationality in the previous 12 months.
- The most frequently cited place at which discrimination was reported to have occurred was at work (36% of those who reported being discriminated against), followed by in Government departments or parishes (27%) and when applying for a job (23%).
- For those who reported experiencing discrimination at work, discrimination was reported to be on grounds of race for a third (34%).
- For those who reported experiencing discrimination when applying for a job, discrimination was reported to be on grounds of race for a fifth (22%).
- For those who reported experiencing discrimination at Government departments or parishes, discrimination was reported to be on grounds of race for a sixth (16%).
Jersey Advisory and Conciliation Service (JACS)
During 2012, JACS recorded 47 clients with issues relating to discrimination, of which 9 were recorded as race discrimination.
Government diversity strategy and data collection on race and ethnicity
The Government of Jersey collects some data in respect of nationality, although, until recently, limited information has been available on race and ethnicity. The Customs and Immigration Service captures immigrant data based on nationality and is searchable by that field. Their law enforcement nominal data also captures nationality and apparent ethnicity (IC code) and is searchable by those fields. Similarly, the Prison Service records the country of origin of each prisoner on admission, as well as their ethnicity. They are able to produce a snapshot of the prison population based on these fields at any time.
The Jersey Police have records on place of birth for both victims and offenders dating back to 2008. However, this information is not automatically captured and has to be manually collated. (See for example Appendix 2).
During 2014, the Government of Jersey has developed a diversity / discrimination strategy which aims to encourage behaviours and culture change to address discrimination; to promote clear accountability for dealing with discrimination and attracting a diverse workforce. A comprehensive training programme has been developed for all government staff to support non-discriminatory behaviour and data will be collected for the entire Government of Jersey workforce to provide a comprehensive record of the ethnic and racial background of Government employees (see Appendix 3).
Non-governmental organisations
In anticipation of the discrimination legislation coming into force, JACS has been providing public and in-house training on the principles of employment related discrimination since 2008. Many organisations have supported these courses; approximately 900 delegates have taken advantage of this training to date. JACS noted in its 2011 Annual Report that “attendance has given managers an opportunity to explore the positive benefits of a non-discriminatory approach to the employment of their staff” and noted that “many employers already set high standards that are reflected in their profitability, low staff turnover and their overall success.”
Many larger business organisations already have the necessary procedures in place to avoid discriminatory practice. Literature and training on general discrimination issues are already available and detailed guidelines have been provided by JACS and the Citizens Advice Bureau prior to the draft Law coming into force. JACS will continue to provide public training courses on the Discrimination Law and the Minister for Social Security allocated funds so that JACS could provide its public discrimination law course at no cost to delegates during 2013 and 2014.
Annex 1
Data on the ethnic composition of Jersey’s population
Census data on nationality and ethnic composition in 2011.
Place of birth
In 2011, half (50%) of Jersey residents were born in Jersey. Nearly a third (31%) were born in the British Isles (including England, Scotland, Wales, Northern Ireland and other Channel Islands). About one in fourteen (7%) of the resident population were born in Portugal / Madeira and 3% were born in Poland.
Table 2.2: Jersey’s population by place of birth Persons | Percent |
Jersey | 48,653 | 50 |
British Isles | 30,223 | 31 |
Portugal / Madeira | 7,031 | 7 |
Poland | 3,133 | 3 |
Ireland (Republic) | 1,880 | 2 |
Other European country | 3,146 | 3 |
Elsewhere in the world | 3,791 | 4 |
Total | 97,857 | 100 |
Ethnicity
The 2011 census asked residents of Jersey to identify which ethnic category they felt best described themselves. Fewer than half (46%) of Jersey residents considered their ethnicity to be ‘Jersey’, whilst another third (33%) considered themselves to be ‘British’.
About one in twelve (8%) Jersey residents considered themselves to be Portuguese or Madeiran, representing about a thousand more people than those who were actually born in Portugal or Madeira.
Appendix 3
States of Jersey
Diversity / Discrimination Proposal
1. Background
The Government of Jersey recognises and values the different attributes, life experiences, capabilities and skills that each employee brings to the organisation. Workplace diversity builds on the principles of equal employment opportunity to include inherent differences such as gender, age, ethnicity, race, cultural/linguistic background, sexual orientation and/or gender identity, intellectual and/or physical ability. Diversity also refers to other ways in which people are different, such as life experience, educational background, personality, marital status, religious beliefs and family responsibilities.
Workplace diversity initiatives assist in building the Government’s relationship with the Island community, enhance the contribution of its employees and improve and support the quality of products and services. Managing diversity involves recognising the value of individual differences in the workplace to realise the full potential of all employees and help the Government achieve its business goals. A diverse network of employees, truly reflective of the wider Island community, is better able to understand and meet the needs of the Public it serves. By supporting diversity and ensuring that it is embedded into policies, processes and the overall culture of the Government, we create a more positive work environment and increase performance and productivity.
The Discrimination (Jersey) Law 2013 (the “Discrimination Law”) was enacted on 1st September 2014. This legislation requires the Government to focus on key areas such as racial equality, inclusion of minority employee groups, the impact on the rights and choices of employees and the importance of work-life balance issues. The first protected characteristic is “Race” which includes colour, nationality, ethnic origin and national origin. The second protected characteristic of the Law will be sex; this will be introduced in conjunction with family-friendly legislation. It is expected that the Law will cover other characteristics such as disability and age over a period of time.
The Discrimination Law makes it unlawful to discriminate in employment and other areas such as education, housing and services. As with employment law situations, discrimination claims will be tested in an employment tribunal.
The employer is liable for acts of discrimination carried out by employees during their time at work. This currently applies to race discrimination and, over a period of time, the other acts adopted through the Discrimination Law. However, an employer can use the defence that they have done everything that they reasonably could to prevent it from happening and have taken an active commitment towards combating discrimination practices in the workplace. This includes maintain up-to-date policies and providing anti-discrimination training to employees. A commitment made by the Minister for Social Security is that the States of Jersey will be an exemplar employer and that a comprehensive training programme will be provided to all staff to support non-discriminatory behaviour.
2. Purpose
The aim of this document is to set out what we want to achieve in the area of workplace diversity, including relevant legislation, and how we address the development needs of employees. This includes the provision of appropriate and effective training, information and communication initiatives using a harmonised approach to diversity, equality and discrimination issues. The training, information and communication strategy will address both internal factors (how you treat your colleagues) and external (how you treat service users).
3. Roles and Responsibilities
As the largest employer in the Island, we have a responsibility to provide good examples to other employers and to be a model of good practice.
As an employer, our aims are to:
Have a workforce that reflects the diversity of our Island
Develop our employees and services so that we can meet the diverse expectations and needs of the public
Develop leadership and management capability and the behaviour of all employees* in relation to discrimination and diversity matters
*All employees are entitled to be treated respectfully; with this comes a responsibility to treat others with respect and encourage a supportive and open environment.
In addition, some employees have specific responsibilities:
Line managers have responsibility for ensuring that diversity is valued within the teams for which they have responsibility
The COs/Senior Management Team is accountable for the organisation commitment to diversity and delivery on the commitments made in the diversity strategy and action plan
The HR Department is responsible for advising the Senior Management Team, Operational Departments and Staff Reps on the Government responsibilities with regards to diversity issues.
5. Key Initiatives
This document focuses on three key themes:
Encouraging behaviours and culture change
Promoting strong leadership throughout the organisation, with clear accountability for dealing with discrimination and promoting diversity
Attracting, retaining and developing talent
5.1 Encouraging behaviours, actions and culture change
How we behave towards each other and towards member of the public (our customers) impacts on organisational performance. To create an inclusive environment we must continue to ensure that our policies, procedures and service delivery uphold the rights of individuals.
Policies and Procedures - review policy and procedures on a regular basis to make sure that they support and promote positive and productive values, standards and behaviours
Service Delivery – review services to ensure that they are appropriate and accessible according to the diverse needs of our customers
Awareness/Learning and Development - ensure that employees understand the importance of diversity issues and their role in the elimination of discrimination including the impact on delivery of services
Performance Management - measure how people perform against competencies and challenges inappropriate behaviour and actions.
5.2 Promoting strong leadership throughout the organisation, with clear accountability for promoting diversity
Successful delivery of diversity initiatives depend on active and visible leadership and clear accountability from Senior Management Teams. Leadership influences the culture of an organisation and how managers behave sets a crucial example.
The Director of HR is responsible for promoting and supporting diversity across the organisation through the creating of a Diversity Strategy and relevant policies and procedures.
All Chief Officers/SMT members are responsible for promoting diversity and ensuring that diversity is embedded in business planning to ensure that relevant services, operational policies and procedures are reviewed for diversity issues and are compliant with Discrimination Law.
All Line Managers are responsible for ensuring that mechanisms are in place for ensuring regular feedback about behaviours and that all employees receive relevant support on equality of opportunity and career development.
All employees are responsible for ensuring that diversity is promoted throughout the organisation and that there is no discrimination in any of their decisions or behaviour.
5.3 Attracting, retaining and developing talent
The Government shows its commitment to attracting, motivating, developing and retaining a diverse range of skills. A diverse workforce will help the Government to improve its activities and performance.
Recruitment - the Government promotes awareness, knowledge and skills relating to equality through its recruitment policies and processes. We aim to explore new ways of promoting diversity through recruitment practice
Talent management - the Government has delivered a number of development programmes such as the Executive Leadership, Modern Manager and Supervisory Charge Hand Programmes. In addition, we intend to develop talent and succession planning through a range of individual leadership and development programmes
Flexible Working - the Government Flexible Working policy covers flexible and part-time working with the aim to attract and retain staff. In accordance with this policy, staff have the right to request flexible working arrangements and the Government undertakes to consider applications on an individual basis
gov.je