The recent #Black Lives Matter peaceful protest in People’s Park, which attracted over 1,000 islanders, calls for an in depth and honest conversation about racism in the core institutions of our island. 

This is also an appropriate time to reflect upon the adequacy of Jersey’s discrimination legislation, first enacted in 2014. This legislation is largely based on the UK Equality Act, but with some significant differences. 

A claimant under the UK Equality Act must raise a prima facia case of discrimination.  The burden then shifts to the respondent to prove, on the balance of probabilities, that the alleged discriminatory act did not occur. This is referred to as the reverse burden of proof. Unlike the UK, claimants under the Jersey discrimination legislation bear the burden of proving, on the balance of probabilities, that the act of discrimination occurred. This places Jersey claimants at a disadvantage when compared to their UK counterparts.  As a result, the amount of work involved for the Jersey claimant in the preparation of their claim is likely to exceed that which is required in the UK, as are the claimant’s costs, where legal advice is sought. 

There is currently an overall cap of £10,000 on the compensation available to a Jersey claimant, in respect of each successful discrimination claim. The maximum compensation available is therefore £40,000, where the claimant is successful in claims for direct discrimination, indirect discrimination, harassment and victimisation.  In reality, not all of those claims will be relevant in the vast majority of cases before the tribunal.  

Of that £10,000, up to £5,000 may be awarded by the Jersey tribunal for ‘hurt and distress’.  In the UK the maximum compensation currently awarded for ‘injury to feelings’ is £45,000 and this sum is increased annually to take account of inflation. This is significantly more than the Jersey cap of £5,000, which has not been increased since its implementation in 2014. 

Bearing in mind the Jersey overall cap on compensation of £10,000, the tribunal may only award up to £10,000 in respect of financial loss.  Where, for example, an award of £2,000 is made in respect of ‘hurt and distress’ only £8,000 will be available from which to make an award for financial loss.  The situation is significantly different in the UK, where compensation for financial loss incurred as a result of a discriminatory act is uncapped. The aim of the UK Equality Act is to award a sum of money to a successful claimant that will put them in the position in which they would have been, had the discriminatory act not taken place. Furthermore, unlikely Jersey, a claimant in the UK may be compensated in respect of future loss.  

The consequences for a victim of discrimination could be catastrophic, in terms of psychological damage and financial loss.  In such cases an overall cap of £10,000 on compensation would appear to be wholly inadequate. In certain circumstances, where a duty of care is established, it may be open to a claimant to bring a personal injury claim against the respondent and thereby increase the level of compensation available.  This would however involve issuing a second set of proceedings, in the Royal Court, which would be time consuming and costly for the claimant.  

The arguments in favour of increasing compensatory awards in Jersey discrimination claims are compelling.   When the Jersey discrimination law was enacted in 2014, the Minister for Social Security was of the view that the £10,000 cap on compensation in discrimination claims was a ‘starting point’, which may be subject to review in the future.  Some six years later, such a review is now well overdue, if the Jersey regime is not to be accused of tokenism.