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Discrimination claims under the Discrimination (Jersey) Law 2013 (the “Discrimination Law”) are notoriously complex. As the number of disability discrimination claims continues to rise, we are also seeing more claims under Article 7A(1) of the Discrimination Law: claims of indirect discrimination by way of failure to make reasonable adjustments for disability. 

Article 7A(1) was considered in the recent case of Aubert v Jersey Village Vets. In this case, Ms Aubert brought claims for constructive dismissal, discrimination and unpaid wages/disputed deductions.

The claim for discrimination related to allegations of persistent pressure to undertake night shifts despite medical advice to the contrary and her ongoing health conditions (anxiety, depression and perimenopause which was diagnosed latterly). Ms Aubert claimed that although she was taken off night shifts, she was required to do a disproportionate number of late finish shifts, which were oppressive given her mental health. She stated that her requests for reasonable adjustments were refused or ignored.

What is indirect discrimination under Article 7?

Indirect discrimination (generally, including outside of the disability sphere) occurs when a policy, criterion or practice (“PCP”), which is applied equally to everyone, disadvantages a specific group sharing a protected characteristic. This is covered by Article 7 of the Discrimination Law.

An example of this would a policy requiring all staff to work full-time, which would disproportionately disadvantage women, who are more likely than men to have childcare responsibilities.

What is indirection discrimination under Article 7A(1)?

Article 7A(1) is specific to disability discrimination.  Article 7A(1) states that if a PCP puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, the disabled person is discriminated against if reasonable steps are not taken to avoid the substantial disadvantage.

This can only apply if:

• The organisation knows or could reasonably have been expected to know that:

• • The disabled person had the disability; and
  • The substantial disadvantage that the PCP would cause. 

When determining whether reasonable steps have been taken to avoid the substantial disadvantage, matters to be taken into account may include:

• The likelihood that the substantial disadvantage was reasonably foreseeable; 
• The extent to which any steps (if taken) would be effective to prevent or remove the substantial disadvantage; 
• The costs of any steps that have or might be taken; and 
• The financial, administrative or other resources available to the person/organisation. 

Aubert analysis

In Aubert, the Tribunal were guided by the approach in A and B v Minister for Education and Lifelong Learning [2024] TRE 221 & 232A:

• Under Article 7A, the burden is on the claimant to prove the PCP relied upon, the substantial disadvantage and the steps or adjustments argued as reasonable. 
• Once reasonable steps are identified, the burden shifts to the respondent to show why it was not reasonable to take those steps. 
• A PCP can be discretionary or contractual, but it must involve an ongoing state of affairs or a general approach, not a one-off decision. A one-off act directed at a single person without more is not a PCP.

The Tribunal concluded that the working of night shifts was a provision in Ms Aubert’s employment contract and a practice adopted by the company.

When the company was “alerted to the medical perception that it would be advisable” to relieve Ms Aubert from night shift duties, they did so. The company did not challenge Ms Aubert’s disability, nor did they challenge the disadvantage that would have occurred had she been required to continue to work night shifts. As she was removed from these shifts, there was no disadvantage suffered.

The Tribunal found that none of the other complaints raised by Ms Aubert fell within the Article 7A(1) framework:

• Although Ms Aubert asserted that the company provided insufficient staff on late shifts, she did not provide sufficient evidence to demonstrate that this amounted to a PCP.  In any event, the Tribunal found that there were sufficient qualified staff on the late shifts.
• In relation to the allegedly disproportionate number of late shifts, this was not put to the Tribunal as a PCP nor could the Tribunal construe it as such. Ms Aubert was unable to specify the reasonable adjustments she said should have been made, in the context of the size of the company. 
• Ms Aubert claimed she had been “badgered” and “hounded” about going back onto night shifts but the Tribunal found that this was not a proper characterization of what took place. 
• Ms Aubert’s general assertion that the company’s management did not take proper account of her complaints could not be classed as a PCP and could not be construed as a discrimination claim. Further, the Tribunal noted that the complaints that were made were not understood to be formal grievances and were not ignored in any event.

For these reasons, the Tribunal dismissed Ms Aubert’s discrimination claims. It also dismissed her claim of constructive dismissal.

Conclusion

Article 7A(1) claims are not straightforward. Aubert shows that claimants need to be very clear in terms of specifying the PCP they say was adopted by the employer and how it is alleged to have put them at a substantial disadvantage. If this is unclear, any claim in relation to a failure to make reasonable adjustments is almost certain to be unsuccessful.

As an aside, this is another example of the rigorous approach adopted by the Jersey Employment & Discrimination Tribunal in terms of its analysis of the evidence put before it.

Viberts provide advice and representation in all aspects of employment and discrimination law, both to individuals and to organisations.