Q&A on the Manx Equality Act 2017 ("the Act")

Posted on September 13, 2017

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Advocate John Aycock of M&P Legal answers some topical questions on the Island’s new equality legislation.

Q.        Has anything changed already for employers and employees since the Equality Act received Royal Assent?

A.         The Department of Economic Development’s (“DED”) website indicates that following Royal Assent on 18 July 2017 the Act is being phased in with all of the provisions expected to come into operation by January 2020.  So far there have been two Appointed Day Orders bringing into operation some minor provisions relating to changes to employment law that are not connected to the Act’s main provisions, for instance consequential and minor amendments.  Further provisions are being enlivened on 1 January 2018 prior to which the DED will publish more information.  The Equality Adviser will, when appointed, help explain the effect of the Act to employers.

Q.        What other changes will be brought in by the Equality Act that might affect me as an employer or employee?  When will they occur?

A.         Perhaps the principal generic change that will have the widest impact on Manx employment is the introduction of new protected characteristic categories that extend to employment as well as the provision of goods and services.  So for instance:

·                For the first time in the Isle of Man age discrimination becomes unlawful with the significant consequent effect that compulsory retirement at say age 65 can no longer be automatic.  Fixing a compulsory retirement age will amount to unlawful age discrimination unless an employer can show retirement to be objectively justified as a proportionate means of achieving a legitimate aim;

·                In regard to disability, employers and service providers will need to make reasonable adjustments to accommodate people with disabilities.  For example an office layout may need to be changed to accommodate staff who are wheelchair users.  Disability however might be widely construed – obesity might in certain circumstances be included, for instance when it results in reduced mobility;

·                The characteristics protected from discrimination, harassment and victimisation are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation;

·                Equal pay protection is extended such that a new concept of equal pay for work of equal value can be claimed rather than the existing position of equal pay for similar work.  A sex equality clause will be read into the terms of all employment contracts.  For example, if a male employee’s contract provides for a company car, a female comparator who does equal work can assert a similar contractual right; 

·                As to when these changes will occur January 2020 is the fully operative aim.  The DED says that a further Appointed Day Order will set out implementation dates for many of the main provisions.  It is likely that for some of the significant changes, such as that affecting retirement age, then there might be transitional arrangements, which is what happened in the UK when similar legislation was introduced.

Q.       Might the provisions of the Act require employers to make modifications to their premises?

A.         Yes, if the modifications are “reasonable” taking into account all of the circumstances of the particular case.  Employers only have to make adjustments where they are aware – or should reasonably be aware – that a worker has a disability.

Q.        I am only a small business, employing fewer than five people. Will all the provisions apply to me?

A.         Yes, as in the case of the UK legislation there is no exemption for small businesses. However, in relation to the duty to make reasonable adjustments for disabled people, what is reasonable for a large business may not be reasonable for a small business.

Q.        As an employer, what support will I be entitled to if I incur expenses or any difficulty as a result of changes required by the Act?

A.         At present DED operates a scheme, the Employment Persons with Disabilities etc. Scheme 1999 which provides grant assistance in respect of disabled employees. See https://www.gov.im/media/424513/employmentdisabilities_scheme.pdf

 Q.       How does the Equality Act affect the rules on minimum wage, especially in terms of age and sex discrimination?

A.         The Act does not affect the rules on minimum wage because differential minimum wage rates are permitted under Schedule 9 to the Act (“Work: Exceptions/ Part 2 Exceptions relating to age”). It should be noted that sex discrimination is already prohibited in relation to employment and the minimum wage.

Q.        Our business has been working towards meeting the demands of the Disability Discrimination Act, but that will be superseded in due course by the Equality Act. Does this mean we have wasted time and money?

A.         No, the same principles apply under the DDA and the Equality Act.  Note that the DDA only covers goods and services and that it does not cover discrimination on the ground of disability in employment. 

 Q.        As a worker, I am concerned my rights under the Equality Act will not be recognised. How do I find out if my rights have been denied and what recourse will I have?

A.       The worker may seek guidance from the Manx Industrial Relations Service (MIRS) or some other source such as a trade union or advocate. If rights under the Equality Act have been breached a worker could choose to lodge an internal grievance with the employer, use MIRS to conciliate, or seek to make a complaint to the Employment and Equality Tribunal (which the current Employment Tribunal will become). Where a complaint is made to the Tribunal MIRS can still offer conciliation to the parties which may result in a conciliated settlement.

Q.        I’m worried that my bosses will struggle to meet all the requirements of the Equality Act and it could end in job losses. Is that possible?

A.         It is certainly not the intention or expectation that the Equality Act will result in job losses.  In relation to the duty to make reasonable adjustments for disabled people, it is unlikely that any adjustment which was so costly as to jeopardise the continued operation of a business would be considered to be reasonable.  This illustrates the concept of proportionality.

Q.        I, as a worker, am put presently at a disadvantage by my employer that, once the relevant provisions come into force, would be in breach of the Act. Do I have any recourse before the provisions of the Act come into force?

A.         No, but not all of the protection in the Act is new.  At present there is some existing protection against discrimination in employment on some grounds (e.g. there is protection against sex discrimination).  Rights that will exist under the Equality Act which do not already exist in Manx law cannot be enforced until the Act comes into operation and the Act does not have retrospective application.

Q.        Does Brexit have any potential ramifications for this Act? Will some of the obligations it aims to meet no longer exist?

A.         It is not envisaged that Brexit will have any ramifications for the Island’s Equality Act. (The UK Government has indicated that there will be no reduction of workers’ rights as a result of Brexit and these will be enshrined in UK primary law if not already there).  

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