Discrimination
(Age) (Jersey) Regulations 2016
Made 24th May 2016
Coming into force in
accordance with Regulation 7
THE STATES, in pursuance of Articles 5 and 47 of the Discrimination (Jersey)
Law 2013[1], have made the following
Regulations –
1 Amendment of the Discrimination (Jersey) Law 2013
The Discrimination (Jersey) Law 2013[2] is amended in accordance
with Regulations 2 to 5.
2 Article
6 amended
After Article 6(8) there shall be inserted the following
paragraph –
“(8A) In relation to the protected characteristic of
age a person does not directly discriminate against another person (the ‘subject’)
if the person can show his or her treatment of the subject to be a
proportionate means of achieving a legitimate aim.”.
3 Article
7 amended
In Article 7(4), after sub-paragraph (d) there shall be
added the following sub-paragraph –
4 Schedule
1 amended
In Schedule 1 after paragraph 6
there shall be added the following paragraph –
(1) Age is a protected characteristic.
(2) In relation to the protected characteristic
of age –
(a) a reference to a person who has a particular
protected characteristic is a reference to a person of a particular age group;
(b) a reference to persons who share a protected
characteristic is a reference to persons of the same age group.
(3) A reference to an age group is a reference
to a group of persons defined by reference to age, whether by reference to a
particular age or to a range of ages.”.
5 Schedule
2 amended
(1) In
Part 1 of Schedule 2, in paragraph 2G –
(a) in
sub-paragraph (2) the word “and” in clause (c) shall be
deleted and after clause (d) there shall be inserted the following clause –
“(e) Articles 17
and 18.”;
(b) in
sub-paragraph (3) after the words “contract work” there shall
be inserted the words “, voluntary work”.
(2) After
Part 3 there shall be added the following Part –
An act of discrimination is
not prohibited by this Law if it is done pursuant to a policy adopted by the
States or by Ministerial decision where the implementation of that policy or
decision applies criteria based upon a person’s age, for the purposes of –
(a) promoting employment or other opportunities;
or
(b) providing access to facilities and services.
(1) An officer of the Jersey Customs and
Immigration Service does not contravene Article 22, in relation to the
protected characteristic of age, in the exercise of any immigration functions.
(2) In sub-paragraph (1) ‘immigration
functions’ means any functions exercisable in relation to immigration –
(a) under any enactment; or
(b) under any Act of the United Kingdom extended
to Jersey (whenever it was so extended) except for sections 28A to 28K
of the Immigration Act 1971.
Article 21 shall not
prohibit a person discriminating against a student, or a person applying for
admission as a student, on grounds of the student’s or applicant’s age.
28 Age: employment benefits
(1) The provision of benefits to employees based
on their length of service does not constitute indirect discrimination under
this Law in relation to the protected characteristic of age.
(2) An employer who makes arrangements for, or
affords access to, the provision of insurance or a related financial service to
employees only while they are under pensionable age does not contravene this
Law in relation to the protected characteristic of age.
(3) Sub-paragraph (2) applies only where
the insurance or related financial service is, or is to be, provided to the
employees or a class of employees –
(a) in pursuance of an arrangement between the
employer and another person; or
(b) where the employer’s business includes
the provision of insurance or financial services of the description in
question, by the employer.
(4) An employer who provides, makes arrangements
for or facilitates the provision of care for children of particular ages does
not contravene this Law in relation to the protected characteristic of age.
(5) In
this paragraph –
(i) paying
for some or all of the cost of providing care for a child,
(ii) helping
a parent of a child to find a suitable person to provide care for the child,
(iii) enabling
a parent of a child to spend more time providing care for the child or
otherwise assisting the parent with respect to the care that the parent
provides for the child;
(1) An employer who pays a person less than a
rate of the minimum wage where the person does not qualify for that rate does
not contravene this Law in relation to the protected characteristic of age.
(2) In this paragraph ‘minimum wage’
shall be construed in accordance with Article 16(3) of the Employment
(Jersey) Law 2003[4].
30 Age: redundancy payments
(1) The provision of redundancy payments by
employers to employees, whether in compliance with or in excess of the
statutory minimum, does not constitute discrimination under this Law in
relation to the protected characteristic of age provided that the payments are
calculated using the same formula for all employees regardless of age.
(2) In this paragraph –
(a) ‘employee’
includes a partner of a partnership to which Article 12 applies and a
contract worker;
(b) ‘employer’
includes a partner of a partnership to which Article 12 applies.
(1) An employer who dismisses an employee who
has reached pensionable age or, if higher, the retirement age set by the
employer, does not commit an act of direct discrimination in relation to the
protected characteristic of age if the employer has a policy of requiring
employees to retire at such an age.
(2) The fact that an employer may, from time to
time, allow an employee to remain in post beyond pensionable age or, if higher,
the retirement age set by the employer shall not of itself be taken to mean
that the employer does not have a policy of requiring employees to retire at such
an age.
(3) In this paragraph –
(a) ‘employee’
includes a partner of a partnership to which Article 12 applies, a
contract worker and a voluntary worker;
(b) ‘employer’ includes a partner of
a partnership to which Article 12 applies and a manager;
(c) ‘pensionable age’ has the same meaning as in Article 1A of, and Schedule 1AA to, the Social Security
(Jersey) Law 1974.
(4) This paragraph applies only to a dismissal
where the effective date of termination (within the meaning of Article 63
of the Employment (Jersey) Law 2003) is before 1st September 2018.
32 Persons nearing retirement age
(1) An employer who takes into account that a
person is nearing retirement age in deciding on –
(a) who to recruit;
(b) who to promote;
(c) who to move to another position; or
(d) what training is to be provided to any
employee,
does not contravene this Law
in relation to the protected characteristic of age.
(2) In this paragraph a person is nearing
retirement age if the person’s age is not less than 6 months (or
such longer period as is reasonable in the circumstances) short of pensionable
age or, if higher, the retirement age set by the employer.
(3) However, in the case of a training course
that lasts more than 6 months there is no contravention of this Law under sub-paragraph (1)
if the employee’s retirement age (as determined by sub-paragraph (2))
is within 6 months of the date on which the training is due to be
completed.
(4) In this paragraph –
(a) ‘employee’
includes a partner of a partnership to which Article 12 applies, a
contract worker and a voluntary worker;
(b) ‘employer’ includes a partner of
a partnership to which Article 12 applies and a manager;
(c) ‘pensionable
age’ has the same meaning as in Article 1A
of, and Schedule 1AA to, the Social Security (Jersey) Law 1974.
(5) This paragraph applies only where the act of
discrimination occurs before 1st September 2018.
(1) The provision and the terms of an
occupational pension scheme, or any personal or group personal pension scheme,
do not contravene this Law in relation to the protected characteristic of age.
(2) In this paragraph ‘group personal
pension scheme’ means arrangements administered on a group basis under a
personal pension scheme that are available to employees of the same employer or
of employers within a group.
34 Age: financial and insurance
arrangements
(1) Parts 3 and 5 shall not prohibit a
person discriminating against a person on grounds of age, in relation to the
terms on which an annuity or policy of insurance is offered to, or may be
obtained by, that person, if the discrimination is reasonable in the
circumstances, having regard to any statistical or actuarial data on which it
is reasonable for the person to rely.
(2) Article 22 shall not prohibit the
provision of a relevant financial service, so far as it relates to the
protected characteristic of age, if the provision is in pursuance of
arrangements made by an employer for the service-provider to provide the
service to the employer's employees, and other persons, as a consequence of the
employment.
(3) In this paragraph ‘relevant financial
service’ means –
(a) insurance or a related financial service; or
(b) a service relating to membership of or
benefits under a personal pension scheme.
35 Age: goods, facilities and services
Article 22 does not
prohibit a person discriminating against another person on grounds of age if
the subject of the discrimination is under the age of 18.
36 Age-related concessions
(a) persons of a particular age group; or
(b) persons who have been members of the club
for more than a number of years specified by the club for this purpose.
(3) A club does not contravene Article 25,
in so far as it relates to the protected characteristic of age, by giving a
concession on invitations, or access to a benefit, facility or service, for
guests of a particular age group.
(4) For the purposes of this paragraph –
(a) affording only persons of a particular age
group access to a benefit, facility or service for a limited time is to be
regarded as a concession;
(b) ‘concession’ means, in respect
of a service, a benefit, right or privilege that is provided on such terms or
in such a manner that is more favourable than the terms on which, or the manner
in which, it is usually provided to a more general group of persons.
(1) A person does not contravene Article 22,
so far as it relates to the protected characteristic of age, by providing a
holiday service to persons of a particular age group.
(2) In this paragraph –
‘holiday service’
means a service –
(a) that involves the provision of at least 2 of
the following together for a single price –
(i) travel,
(ii) accommodation,
(iii) access
to activities or services not ancillary to travel or accommodation that form a
significant part of the service or its cost;
(b) the provision of which is for a period of
more than 24 hours or includes the provision of overnight accommodation;
(c) that the holiday service provider provides
only to persons of the age group in question; and
(d) an essential feature of which is the
bringing together of persons of that age group with a view to facilitating
their enjoyment of facilities or services designed with particular regard to
persons of that age group;
‘travel’ includes
an option for an individual to make alternative travel arrangements to those
included in the holiday service as standard.
38 Age-restricted services
(1) A person does not contravene Article 22,
so far as it relates to the protected characteristic of age, by refusing to
provide a service the provision of which is prohibited by or under an enactment
to persons under the statutory age, to a person who –
(a) appears to the person providing the service,
or that person’s employee or agent, to be under the statutory age; and
(b) on being requested by that person to provide
satisfactory identification, fails to do so.
‘satisfactory
identification’, in relation to a person, means a valid document that
includes a photograph of the person and establishes that the person has
attained the statutory age in relation to the provision of the service;
‘statutory age’
means the age specified in or under the enactment whereby a person under that
age is prohibited from doing any act.
39 Age: sport and competitions
(1) A person does not contravene this Law in
relation to the protected characteristic of age only by doing anything in relation
to the participation of another as a competitor in an age-banded activity if it
is necessary to do so –
(a) to secure, in relation to the activity, fair
competition or the safety of competitors;
(b) to comply with the rules of a national or
international competition; or
(c) to increase participation in that activity.
(2) For the purposes of this paragraph, an
age-banded activity is a sport, game or other activity of a competitive nature
in circumstances in which the physical or mental strength, agility, stamina,
physique, mobility, maturity or manual dexterity of average persons of a
particular age group would put them at a disadvantage compared with average
persons of another age group as competitors in events involving the activity.
40 Age: scholarships, prizes and awards
An act of discrimination is
not prohibited by this Law in relation to the protected characteristic of age where
scholarships, prizes or other awards are made available only to specified age
groups.
6 Amendment
of Employment (Jersey) Law 2003
(1) The
Employment (Jersey) Law 2003[5] is amended in accordance
with this Regulation.
(2) After
Article 64(2)(b) there shall be inserted the following
sub-paragraph –
“(ba) is that the employee was required to
retire;”.
(3) For
Article 74 there is substituted the following Article –
(1) Article 61 shall not apply to the
dismissal of an employee if on or before the effective date of termination the
employee has attained –
(i) in
the undertaking in which the employee was employed there was a common retiring
age for men and women holding the position held by the employee, and
(ii) that
retiring age was higher than pensionable age,
that retiring age;
(i) in
the undertaking in which the employee was employed there were different
retiring ages for men and women holding the position held by the employee, and
(ii) the
higher of the retiring ages is greater than pensionable age,
that higher retiring age; and
(c) in
any other case, pensionable age.
7 Citation
and commencement
(1) These
Regulations may be cited as the Discrimination (Age) (Jersey) Regulations 2016.
(2) These Regulations shall
come into force on 1st September 2016 apart from
Regulation 6(2), which shall come into force on 1st September 2018.
dr. m. egan
Greffier of the States