Talking of tolerance…

HERE’S a thought for you: as a society, we’re quite prepared to tolerate crime. Up to a point anyway. Short of imposing a police state, introducing secret surveillance and severely curtailing individual rights of expression and freedom to associate with others, we accept there’s a balance to be struck between zero and minimal offending.

(Lightspring/Shutterstock)
(Lightspring/Shutterstock)

Finance plays a part too. Former chief of police George Le Page frequently railed against the cost/headcount cap he faced, although the recently retired Patrick Rice never once mentioned it. He reorganised the service instead and Home Affairs, depending on whether you choose to believe official reports or not, are blocking further efficiencies on grounds of ideology alone.

So we can see that when it comes to law and order – a pretty significant part of our existence – value judgements are made when it comes to establishing a regime that’s broadly acceptable to all and that gets the job done without a disproportionate burden on taxpayer or individual liberties.

It’s a pragmatic approach. If ensuring 80% of the time we’re all law-abiding (or caught and punished if not) costs £X, we recognise that knocking the remaining 20% on the head is a) impossible and b) in any event going to involve a disproportionate impact on government finances and be oppressive on the population.

You’ve guessed where this is going… the proposed discrimination legislation.

To be clear, I don’t have a definite view on it yet, although when I ended up on crutches for a week a few years back, I saw that as my problem rather than anyone else’s (the sprung doors at Manor Stores pharmacy did defeat me, however).

Nevertheless, it is appropriate to ask whether those behind the proposals, still out to consultation until the end of the month, are looking for pragmatic solutions – or shock and awe groundbreakers that will end discrimination as we know it. Going for that final 20% as it were.

My reading of legal experts Carey Olsen’s client questionnaire on this important topic is that they’re surprised at the regulatory zeal demonstrated by the draft. ‘We have identified a number of areas that we consider warrant particular consideration,’ as they dryly put it.

The reason, among many, is that the definition of disability is deliberately widely drawn ‘to remove the need for an individual to prove that they are disabled and instead to move the focus onto the employer and its responses to accommodating that individual’s condition’.

The definition expressly states that there is no minimum period of time over which the disability should have been experienced. This absence of a ‘qualifying period’ means someone could be regarded as disabled even if a condition is short-term. In the UK and Jersey, for instance, the qualifying periods are 12 months and six months respectively.

And while ‘disability’ can be interpreted as someone being a bit thick, there is no required level of impact on the ability of the affected person to function. So being dim is enough in itself, not that you’re disadvantaged by a level of mental acuity that’s less than someone else’s.

This wide scope is reflected elsewhere. Harassment, including sexual, becomes the employers’ liability even if perpetrated by third parties such as customers or suppliers, while employees can bring a claim for equal pay if they can identify a comparator working for the same (or associated) employer carrying out ‘equal work’, and who is being paid more than them – even if that’s in a different jurisdiction.

Careys, for instance, works out of nine different locations, including London, Hong Kong and Singapore.

Anyway, its questionnaire highlights many similar areas that need ‘particular consideration’, including unlimited compensation for ‘injuries to feelings’ (other jurisdictions cap that), while introducing age as a protected characteristic will have an impact on fixed retirement ages in the workplace.

Managing absence – always a difficult area – would become significantly more complex and ‘employers will need to have access to an appropriately resourced occupational health system in place which can support the legal obligations to be imposed on employers’, says Carey Olsen.

Fine for the likes of them, I suppose, but less so for other local firms when you remember that the majority of businesses in the island employ fewer than 10 staff and just 60 companies have 51 to 100 workers.

Since Carey Olsen isn’t expressing a view on the proposals, we can take this as an eyebrow being raised over the island’s apparent enthusiasm for exceeding regulatory thresholds adopted elsewhere.

More fundamentally, however, the proposing Committee for Employment and Social Security seems to have lost its way over sex. Defining it biologically would have been fine but the committee wants to introduce the concept of ‘man’ or ‘woman’, the definition of which will include ‘social’ factors – in other words what someone ‘self-identifies’ as.

This, and the associated area of trans individuals, is clearly difficult and sensitive yet a read through the committee’s proposals shows how they’re in a bit of a jam over this because, ultimately, it will be left to a court to subsequently decide whether a person is a ‘man’ or ‘woman’ although it is clear that biology does NOT need to play a part in that decision.

You may be aware of a case in Canada where an individual who doesn’t identify as a man wanted hair to be removed from areas not generally associated with women, which is why we now have the concept of lady-scrotums and court cases over whether it’s discriminatory for biologically female women to refuse to wax them.

Under the current discrimination draft Guernsey, too, could be heading down that path while, at the same time, there are no proposals for those who lose discrimination cases to pay the legal costs of the other side, even where the case was ‘frivolous, vexatious, trivial or misconceived’.

Where all this leaves biological women requiring single-sex safe spaces like changing rooms, prison wings or domestic violence refuges is anyone’s guess since the law protecting someone’s self-declared identity – and thus access to such areas – would effectively be predicated on simply claiming to be a woman.

Groundbreaking legislation indeed.

However, I suppose the biggest shock and awe regulatory change is that the committee wants to use the Irish definition of ‘disability’. This is significantly different from those used in the UK and Jersey and approaches what counts from a ‘social model’ perspective, rather than a medical one.

This shifts the focus from disability being assessed on the basis of recognised medical difficulties affecting those with impairments, to a focus on the social impact and barriers which prevent those with impairments from being able to fully participate in society and the workplace.

I’m not saying that’s wrong but the States does need to assess whether it’s a proportionate response to the scale of the problems here or – like crime – whether we need to ask if eliminating it completely comes at too high a price for society generally.

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