Service providers' duties under CI discrimination law - minimising legal risk

Guernsey's discrimination law landscape will change on 1 October 2023, with the introduction of the Prevention of Discrimination (Guernsey) Ordinance, 2022. Local employers are currently preparing for the new law by training their workforce and updating their policies and procedures.

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However, they should bear in mind that the new Ordinance does not only apply in the employment context, and that they may also have responsibilities towards their customers.

Any company that provides goods, services or facilities to the public, or to a section of the public, will be considered a "service provider" under the new Ordinance. Service providers must not discriminate against or harass their customers, and must make reasonable adjustments for disabled customers.

Service providers operating in Jersey have been under similar duties since the Discrimination (Jersey) Law 2013 came into force.

We have set out below five actions that all Channel Island service providers should consider taking to ensure compliance with local discrimination laws.

1 - Make proactive reasonable adjustments – in particular for Guernsey-based customers

Service providers in both islands are under a duty to make reasonable adjustments for disabled customers, in the same way that they are required to make reasonable adjustments for disabled employees. However, in Guernsey, they are also under a separate proactive duty to make reasonable adjustments for disabled customers. This means that they cannot wait until a disabled person wants to use their services to consider the issue of reasonable adjustments, but must think in advance (and on an ongoing basis) about what disabled people with a range of impairments might reasonably need, and implement those which are reasonable. As with the general duty to make reasonable adjustments, what is reasonable will depend on all the circumstances, including the size, nature and resources of the organisation and the nature of the services it provides.

A similar duty exists in the UK, and the UK tribunals have previously upheld a number of claims, including a claim against a Police force, when they failed to adjust their standard procedures when interacting with an autistic person, and a claim against a bus company, when it failed to put in place systems that made it sufficiently clear that wheelchair users should have priority access to designated wheelchair accessible spaces.

Private companies have some discretion as to how they ensure and monitor compliance with their duty to make reasonable adjustments proactively, but essentially they need to ensure that they review their policies and procedures, their premises and the way in which services are provided on a regular basis, to consider what adjustments might be required and which can reasonably be implemented. Reasonable adjustments may include, for example, providing information in alternative formats, allowing customers to access or book services in a different way, allocating parking spaces for disabled customers and/or providing specialist equipment.

The new Guernsey Discrimination Ordinance is largely coming into effect on 1 October 2023. To the extent that a reasonable adjustment would require changes to physical features of premises, such adjustments will not need to be made before 1 October 2028, although it would be good practice to implement them sooner, where feasible.

There is no equivalent proactive duty to make reasonable adjustments in Jersey, but it is still advisable for companies to consider making adjustments proactively, to maximise the likelihood of complying with their general duty to make reasonable adjustments.

2 - Put in place processes that staff should follow if further adjustments are requested or required

Even if proactive reasonable adjustments are made, it may be that further adjustments are requested by disabled customers. Any such adjustments must be properly considered and implemented to the extent they are reasonable. Service providers need to ensure that staff know what to do if further adjustments are requested – for example, who they can contact for advice and how to respond to the customer in the interim.

3 - Arrange training for staff, especially customer-facing staff

It is important that staff are aware of and understand any procedures that are put in place in relation to reasonable adjustments and that they are able to recognise a request for a reasonable adjustment if one is made. It is also important that they understand what is expected of them under discrimination legislation more generally, for example, what types of behaviours could constitute unlawful harassment. This is often best achieved through staff training.

Training should help minimise the risk of discrimination occurring. It could also potentially help the service provider to defend any claim which is brought, on the basis that they took all reasonably practicable steps to prevent the discrimination from taking place.

4 - Deal with complaints in a timely manner

Customers only have a relatively short timeframe within which to bring a claim – eight weeks in Jersey and three months in Guernsey.

Prior to bringing an Employment Tribunal claim against a service provider in Guernsey, the customer will need to set out details of their complaint in writing, and notify the service provider of their intention to bring a claim if their complaint is not resolved within one month.

There is no similar requirement in Jersey, but as a matter of practice, service providers in both islands will usually receive a complaint directly from the customer in the first instance, before they commence legal proceedings.

It is very important that if a complaint of discrimination is raised, the organisation has in place a process which enables it to investigate and respond to the complaint promptly. Otherwise, they are likely to find that the customer commences legal proceedings, to ensure that their complaint is brought in time, without the service provider having had an opportunity to fully explore other solutions.

5 - Review / update any client facing agreements and terms and conditions

Service providers can face claims for indirect discrimination if any provisions in their agreements, policies or procedures place those in a protected group at a particular disadvantage.

Service providers should therefore consider whether any of the terms in their client agreements, policies or terms and conditions could place those who share a protected ground at a particular disadvantage, and if so, whether the relevant term can be objectively justified. Service providers should also consider whether they can rely on any of the exceptions in the law.

Sarah AshGroup Partner*T +44 (0) 1481 748
Danielle BrouardSenior CounselT +44 (0) 1481

Daniel ReadPartnerT +44 (0) 1534 700

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