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Guernsey entering "very dangerous territory" on equal pay

Guernsey entering

Thursday 29 September 2022

Guernsey entering "very dangerous territory" on equal pay

Thursday 29 September 2022


The States have narrowly rejected an attempt to water down sections of a draft law which deal with pay discrimination in the workplace.

Deputy John Dyke, pictured (top right) wanted clauses on equal pay to be removed from the draft law and instead rely only on a general clause outlawing discrimination against employees.

But his amendment, which was seconded by Deputy Christopher Le Tissier, was defeated by 18 votes to 19 just before the States adjourned for lunch on the second day of debate on the draft anti-discrimination law proposed by the Committee for Employment & Social Security.

religion_and_disability.jpg

Pictured: The draft anti-discrimination law which deputies are debating this week includes outlawing discrimination based on a person's religious beliefs, disability and various other grounds.

Deputy Dyke warned that the Committee's proposals went "far beyond what is required in Jersey in terms of equal pay", which he said would take Guernsey "into very dangerous territory indeed" and have "potentially far-reaching and unpredictable implications beyond discrimination".

The Committee's Vice President, Deputy Lindsay de Saumarez, said that Deputy Dyke had overstated the effect of the proposed law, which does not deal with the concept of 'equal pay for work of equal value'. She assured the Assembly that differences in wages would still be allowed "if an employer thinks that employee A is just better at their job than employee B". 

"The only thing that this legislation is concerned with is if…that pay discrepancy is a factor of discrimination on a protected ground [such as disability or race or sexual orientation] and that would have to be proven," said Deputy de Sausmarez. 

Deputy Lindsay De Sausmarez

Pictured: Deputy Lindsay de Sausmarez said the draft law would not cause businesses the type of serious problems which Deputy Dyke suggested.

Deputy Dyke quoted from a letter written by the Guernsey Financial Services Commission earlier in the year which set out some of the challenges of the island remaining competitive to financial services companies which could choose to locate in many other places in the world. 

He said the Commission wrote: "At present, one of Guernsey’s advantages is that it is relatively inexpensive to hire staff. This makes the cost of taking someone on in the Bailiwick low in terms of employment law-related risks, encouraging employers to take on people whom they might otherwise consider quite risky hires. This is one of our competitive advantages and happily seems to have led to a larger portion of the population being in higher wage employment than their skills and experience would be likely to command in the UK."

Deputy Dyke feared that this would be put at risk if the States voted for the draft anti-discrimination law without watering down the sections on pay discrimination as proposed in his amendment.

He said he was concerned that employees would find it too easy to launch cases of discrimination against pay and conditions which were normal in financial services and necessary to recruit and retain good staff.

"There are particular difficulties in fund management, where remuneration deals are structured and tailored on a case by case basis," said Deputy Dyke. "I’m not scaremongering - this is a huge potential problem. International employers will look at this and simply not wish to engage in these arguments...they will look at these provisions and hate them. It makes it effectively impossible to operate fund businesses with senior staff here if you impose these additional restrictions."

financial_services_generic.jpg

Pictured: Deputy John Dyke said that one well-known fund manager had told him that the draft law would cause "chaos" if equal pay requirements were not removed, as proposed in his amendment. 

As well as claiming that the draft law would not constrain employers in the ways Deputy Dyke suggested, the Committee said the draft law was based on how pay equality laws operate in other places and that approving Deputy Dyke's amendment would weaken anti-discrimination measures in the workplace.

His Majesty's Procureur, Megan Pullum QC, advised the States that the sections of the draft law under debate were based on the UK's Equality Act and that there was a substantial body of case law to draw upon when dealing with discrimination claims relating to pay equality. 

Deputy Lyndon Trott, who chairs the promotional body Guernsey Finance, said that Deputy Dyke had been right to raise his concerns but had overstated the effects of the proposed law.

"I want to absolutely refute any suggestion that this in any way, shape or form places our major industry in jeopardy. It most certainly will not. But it could – I repeat could – have an impact," said Deputy Trott.

Deputies Simon Vermeulen and Lyndon Trott

Pictured: Deputy Simon Vermeulen (left) argued that including equal pay in the draft anti-discrimination law could be very damaging to business in Guernsey, but Deputy Lyndon Trott argued that any negative effect would be much more limited.

Deputy Charles Parkinson spoke of his experience as a director of small- and medium-sized firms in Guernsey and of larger companies with an international presence.

"They are very used to operating under anti-discrimination rules in other jurisdictions. Moreover, they tend to be fiercely proud of their non-discriminatory cultures and would be horrified if it was alleged with any justification that they had discriminated unfairly against any employee. And they would expect Guernsey as a jurisdiction in which they operate to have appropriate anti-discrimination laws," said Deputy Parkinson.

"Indeed, they would wish to be associated only with modern jurisdictions that meet good, modern employment and other standards. In my view, far from this legislation having a deterrent effect on investment decisions and worsening our position in competition terms, I think it would enhance the appeal of Guernsey to good, reputable companies."

Debate continues on other amendments to the draft law, after which the draft law, as amended, will be put to the vote.

Deputy Charles Parkinson

Pictured: Deputy Charles Parkinson argued that responsible businesses expected the jurisdictions in which they operate to have modern anti-discrimination laws.

How they voted...

For the amendment (18): Deputies Aldwell, Blin, De Lisle, Dudley-Owen, Dyke, Ferbrache, Haskins, Helyar, Inder, Le Tissier, Mahoney, Meerveld, Moakes, Murray, Prow, Queripel, Vermeulen and Alderney Representative Roberts.

Against the amendment (19): Deputies Brouard, Burford, Bury, Cameron, de Sausmarez, Fairclough, Falla, Gabriel, Gollop, Kazantseva-Miller, Le Tocq, Leadbeater, Matthews, McKenna, Parkinson, Roffey, Soulsby, St. Pier and Trott.

Abstained (2): Deputy Taylor and Alderney Representative Snowdon.

Absent (1): Deputy Oliver.  

READ MORE...

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