Guernsey’s disability conundrum

At its simplest, it’s why you’d rather locate your business in London than Paris or Milan, where labour laws are not only labyrinthine, they’re also incredibly restrictive and inflexible.

Similarly, regulators themselves frown on other jurisdictions framing their own financial codes with a view to gaining a commercial advantage. It’s why the EU hates Dublin’s 12.5% corporation tax rate when the average in Europe is around 22.5%.

It’s also why the European Commission insists Apple pays 13bn euros in unpaid tax plus interest to the Irish government even though Ireland says the money’s not owed and they don’t want it.

But what if a territory flexed its laws in a way that provided a disincentive to business to locate or remain there? That would be a crazy, foot-shooting moment, wouldn’t it?

Yet – and no apologies for returning to this – the fear among large sections of the island’s business community is that the proposed discrimination legislation is going to do just that, with the Institute of Directors’ Stretch Kontelj reinforcing these concerns in a broadcast interview just this week.

That, he says, is based on legal opinion they have just received and, since the proposals will most impact on small to medium businesses – the bulk of what we have here – it makes sense to delay things for his members to see and respond to that advice.

He has two problems with that. Those backing the proposals want to get it all done and dusted before next June’s general election, so the inclination there is simply to try to flatten any opposition. Additionally, anyone saying anything that can be taken as remotely negative against the proposals is immediately demonised.

Which is why Rob Platts, the founder of Guernsey Disability Alliance, took issue with my remarks here last time around: ‘“Being a bit thick”, “lacking talent”, feeling sad or having a hangover will not qualify as a disability,’ he ticked me off.

Well, Rob’s an excellent person and I’m not going to fall out with him but he also went on to say: ‘There has to be an underlying diagnosed condition causing different thinking or learning.’

That means, of course, that ‘thickness’ can therefore be classed as a form of disability. But my main concern is his linking it to an underlying diagnosed condition – because the proposals seek specifically to move away from defining disability.

As Stretch Kontelj put it on radio, Guernsey’s enthusiasm for deviating from the UK and Jersey models in favour of those adopted by Ireland and Australia means that disability becomes self-determining. No medical evidence required.

But is he correct in these claims? A local legal opinion I’ve seen (not via the IoD) says ‘disability’ includes but is not limited to: the total or partial absences of a person’s bodily or mental functions, including the absence of a part of a person’s body; the presence in the body of organisms or entities causing, or likely to cause, disease or illness; the malfunction, malformation or disfigurement of a part of a person’s body; a condition or malfunction which results in a person learning differently from a person without [it]; or a condition, disease or illness which affects a person’s thought processes, perception of reality, social interactions, emotions or judgement or which results in disturbed behaviour.

The lawyers also say that the course or duration of the disability is not relevant and there is no required level of impact on the ability of the affected person to function.

The final point the advocates make is the States have explained the intention of this wide definition is 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.

Moving away from my slightly provocative ‘thickness’ test, you can see how widely drawn the proposals are and how, according to the lawyers, it establishes the employee’s right to say to his or her boss, ‘I’m telling you I’ve got (or am missing) X, what are you going to do about it?’ So disability effectively equates to sickness.

And this is the conundrum the States now faces. All the evidence suggests the proposals are the best they can be from an inclusivity and disability perspective. But are they right in an island economic context? As Stretch pointed out, we’re a bit smaller than Australia.

Emily Litten, who heads Guernsey Mind, puts it this way: ‘If you have ever been singled out, denied a service, not felt valued or respected, or even felt harassed, and where assumptions have been made about your capacity and abilities, you may have been discriminated against.’

Well, yes, but there are few of us who haven’t experienced such things over the years because it’s called life – which can be nasty, brutish but happily rather less short than it used to be.

To be clear, I’m not talking against the proposals, as I have no doubt they’re the very best they can be from the perspective of those affected by disability or who may yet be so.

Unfortunately, someone also has to ask whether they are correctly pitched for Guernsey’s needs – that reverse regulatory arbitrage I mentioned earlier. Ultimately, doing so falls to States members and I don’t envy them that task at all. Especially, it has to be said, as you never know the adverse impact it’s really had because you can’t measure the business that didn’t locate to the island.

Get it right and it’s a significant advance for inclusivity. Get it wrong and the economy suffers. That’s a hard call, especially when the only thing that keeps this island afloat is a steady supply of well-paid jobs – and the Committee for Employment & Social Security has already been warned that if the new proposals are introduced as drafted, businesses will leave.