- The option to conciliate/mediate remains open to the parties throughout the process until the conclusion of the Hearing.
- After the Hearing, the Tribunal will issue its Decision, giving Reasons for its Decision.
- If an Applicant is successful in their claim, the Tribunal will make an Award in accordance with the provisions of the relevant Law.
- The Tribunals decision may be appealed to the Royal Court on a point of law only.[/breakout]
Lindsay Edwards-Thatcher, a Jersey Employment Law specialist and director of TM Legal Services, claims that the tribunal is setting down dates for hearings before the conciliation process – whereby employer and employee attempt to reach a mediated settlement – has even begun.
The claim has been denied by the tribunal, who say all cases are encouraged to go through conciliation and that litigation is a last resort.
‘Quite often, employers want to use the conciliation service and settle the matter quickly and in the interests of both them and the employee.
‘However, the tribunal is, at the same time, pushing the court process.
‘In fact, dates are coming from the tribunal to attend court for a case management meeting often ahead of any conciliation meeting.
‘What it means is that employers are having to fork out thousands of pounds, sometimes tens of thousands, in legal fees because the tribunal has arranged a court appearance before it is necessary.
‘It is ridiculous that the tribunal would seek to apparently circumvent the conciliation process in favour of the more costly option.’
She added: ‘Conciliation is a very important tool in employment disputes and must not be pushed to one side for the sake of the tribunal.
‘This bias away from conciliation has to end.’
A spokesperson from the tribunal said: ‘The tribunal does not fast-track cases to litigation.
‘When a claim is received from an employee, a copy is sent to JACS and they will contact the applicant and offer a mediation service.
The Jersey Employment and Discrimination Tribunal is a judicial body established to resolve employment related disputes and discrimination claims both in the workplace and otherwise.
The Tribunal is like a court but it is not as formal; for example, nobody wears a wig or gown. However, like a court it must act independently and cannot give legal advice. It is a free service and parties are encouraged to present their cases themselves as it is not necessary to be represented by a lawyer. The Tribunal do not award legal costs in respect of any hearing. Almost all hearings are open to the public.
‘The tribunal continues to direct the applicant to JACS at all times during their progress through the system.
The chairman of each hearing, whether it is a case management meeting or an interim hearing, as part of his or her closing remarks, will specifically remind the applicant that they should continue to work with JACS on mediating their claim.
She added: ‘The tribunal has no bias away from conciliation and always encourages applicants to proceed with mediation.
‘Going into court should always be the last resort.
‘However, there will always be cases where mediation will not work, and by allowing the two processes to run in parallel, the tribunal can then ensure that the parties are able to have their case heard as soon as possible after any failure of mediation.’
If an Applicant believes that he is entitled to make a complaint of discrimination under the Law he should refer the matter to the Tribunal.
A complaint may be made where the complaint of discrimination arises in the course of paid or voluntary work, whether permanent, temporary or contracted, in respect of :
- Selection for employment
- Terms and conditions of employment
- Denying or limiting access to opportunities for promotion, transfer, training or other benefit
- Dismissal, selection for redundancy or other detriment
- Partnership issues
- Membership of professional or trade organisations
- Professional bodies conferring authorization or qualification
- The provision of vocational training
- The services of employment agencies and volunteer bureau
An action may also lie against a person who has committed an act of discrimination in these particular areas of our society:
- Education
- The provision of goods, facilities and services
- Access to and use of public premises
- The disposal or management of residential and commercial premises
- Membership of a club or association[/breakout]
THE Havana nightclub earned national headlines in the summer of 2008 when its owner and bouncers refused entry to a group of women because they were too fat.
The offended women later protested in town, claiming that they had been discriminated against.
Around 50 people carried out the march, which drew large crowds as it moved through St Helier handing out leaflets, and more than 1,000 people liked a Facebook page supporting them.
TREVOR Phillips, the former head of the Equalities Commission and for years an outspoken advocate of anti-discrimination legislation, said in interviews that the laws he once championed have stifled debate about public interest issues which have a racial dimension. A tongue-tied society has provided fertile ground for the incubation of extremism. But the next step – a new culture in which issues can be discussed openly and constructively – requires maturity and reasonableness.
Are we ready to embrace that new culture here in Jersey?
In September last year, the first part of new anti-discrimination legislation came into force. To date, three cases have gone before a tribunal. One has been rejected and two are ongoing. This law must not be used to suffocate everyday conversation, whether it is light-hearted banter that has brought colour to inter-island relationships for generations, or debates about issues which can be solved if racial dimensions are understood and addressed.
There are, for example, different characteristics to the drugs cultures associated with different community groups in Jersey. To understand that and tackle the specific problems allied to each is essential to finding solutions. Even a brief look at comments posted online in the Island suggests that many still lack the necessary maturity. But these people do not represent the views of right-thinking Islanders, the silent majority of a community in which 50 per cent of people are immigrants.
If the law allows sensible and honest debate, but comes down hard on those fuelled by prejudice and hate, then it will be a success. Jersey can learn from the UK experience and should resist the foolish path of unfettered political correctness.
