  |
Equal opportunities bill 2006
|
The Government last week published the Equal Opportunities Bill 2006. Building on existing provisions in the Equal Opportunities Ordinance 2004 and the Employment Ordinance, the Bill goes one stage further by prohibiting discrimination on the grounds of disability, age and pregnancy as well as on the existing grounds of race, sex, sexual orientation, and religion.
This legislation transposes EU Directives which have to be transposed by December 2006, says a Government press release.
Most of the Bill's provisions deal with equal opportunities in relation to employment, selfemployment and vocational training. Employers, partners, trade unions, professional associations, vocational training providers and employment agencies will all be under an obligation not to discriminate on equal opportunities grounds. Employers will need to be aware that the legislation also makes them responsible for discrimination by their employees, unless they can prove that they took reasonable steps to prevent such discrimination occurring.
The Bill makes it unlawful to directly discriminate against a person - for example by advertising for only male or female applicants or only for persons under the age of 40. It also makes it unlawful to indirectly discriminate against persons - for example where a provision seems neutral but in practice negatively impacts against people in an equal opportunities category.
Men and women are, under the Bill, entitled to equal pay and occupational pensions. This will apply not only where they are doing the same jobs, but also where they are doing different jobs which are of equal value - for example in terms of the level of skills, responsibility and the qualifications required to do the job.
For the first time in Gibraltar's legislation, a definition of disability has been introduced - disability is defined as "a physical or mental impairment which has a substantial and long term adverse effect on the person's ability to carry out normal day-to-day activities". In relation to disability discrimination the Bill also introduces the new concept of "reasonable adjustments". Employers, partnerships, trade unions and others will need to make reasonable adjustments to ensure that persons with disabilities are not placed at a substantial disadvantage compared with other persons who are not disabled. Failure to do so will be unlawful discrimination.
The age discrimination provisions also introduce new concepts for Gibraltar - one which will affect many people is the new retirement provision. The Bill introduces the concept of a default retirement age, set at 65. Employers may require staff to retire at the age of 65 provided that they have followed the duty to consider working beyond retirement age procedures set out in the Bill. Employers will be able to set a lower compulsory age for retirement if they can show that this serves a legitimate aim and that the lower retirement age set is appropriate and necessary to meeting that aim. The Bill does not require a person to work until the age of 65 nor does it affect the age at which a person can obtain old age pension.
The Bill also prohibits harassment on equal opportunities grounds. Unlawful harassment occurs where, on an equal opportunities ground, a person is treated in a way which violates their dignity or creates an intimidating, hostile, humiliating or offensive environment for them. It could include name calling, offensive telling of inappropriate jokes or physical conduct of a sexual nature.
People who take, plan to take or support others in bringing legal action under the Bill will also be protected since the Bill prohibits treating such persons unfavourably. Moreover, the Bill protects not just isolated individuals, but also those affected by collective agreements and rules of undertakings - where these contain terms which are unlawful under the Bill, the Court or Tribunal will have the power to strike out the offending provisions.
Discrimination will be unlawful if it is on the grounds of sex, sexual orientation, pregnancy, racial or ethnic origin, religion or belief, age or disability. Even on these grounds the Bill does permit discrimination in some limited circumstances including for the purposes of positive action.
Employers and others affected by the new provisions will need to look carefully at their current practices to ensure that they are not inadvertently in breach of the new law.
Looking at recruitment practices and application forms may be one place to start - do your advertisements contain discriminatory language? Do your application forms ask for information about marital status, sex or age - and, if so, do you need that information in order to select potential candidates or could it be collected after you have recruited?
When recruiting does your company look for people of a particular age, sex, disability status or racial origin - ask yourself why and check whether you are discriminating in breach of the law. In relation to existing employees employers will need to ensure that promotion is non-discriminatory as are pay and conditions and that they understand and apply the new procedures in relation to retirement. The Government will publish guidelines for employers.
Outside of the employment and vocational training field the Bill also prohibits discrimination in the provision of goods and services on the basis of racial or ethnic origin. The provision of goods and services includes many areas such as selling and letting property, education and health services and access to hotels.
Guidance in Gibraltar can be obtained from the Department of Employment and the Gibraltar Citizen's Advice Bureau. The Citizen's Advice Bureau has appointed to assist people in pursuing complaints in relation to sex and race discrimination in Gibraltar. A vast array of further information and guidance is available on the internet.
|
|
|
|
