Prohibited acts of discrimination: context
The Jersey Employment and Discrimination Tribunal (the "Tribunal") has jurisdiction to hear discrimination claims falling within the scope of the Discrimination (Jersey) Law 2013 ("Discrimination Law"). Not every discriminatory act will be unlawful. Discrimination is unlawful if it relates to a protected characteristic (such as race, sex, age or disability) and falls under one of the relevant parts of the Discrimination Law:
- Part 3 covers discrimination in the context of paid work.
- Part 4 covers discrimination in the context of voluntary work.
- Part 5 covers discrimination in the context of non-work-related matters such as education, the provision of goods and services, clubs and access to public premises.
The Tribunal only has jurisdiction where the act of discrimination is a prohibited act falling within one of these categories.
Judgments concerning disability discrimination, children and education
We now have a number of discrimination cases concerning disability discrimination, children and education including:
- C v Minister for Children and Education [2022] TRE 191, concerning failings of the Minister in relation to finalising a child's record of needs. Viberts case note can be read here. The Judgment can be read here: C v Minister for Children and Education [2022] TRE 191.
- C v R [2024] TRE 145, concerning the discriminatory exclusion of a child from nursery as a consequence of the impact of epileptic seizures suffered by the child. Viberts case note can be read here. The Judgment can be read here: C v R [2024] TRE 145.
- A and B v Minister for Education and Lifelong Learning [2024] TRE 231 & 222 ("A and B v Minister"), concerning the meaning of "services" in relation to the provision of "Goods, facilities and services" under Part 5 of the Discrimination Law. The Judgment can be read here: A and B v Minister for Education and Lifelong Learning [2024] TRE 231 & 222.
Meaning of "services"
In the case of A and B v Minister the Tribunal considered whether the Government of Jersey's actions when exercising public functions could constitute the provision of "services" to one or more parties affected by those actions.
In this case, A and B were siblings of pre-school age with disabilities. The parents of A and B required additional support and found a childminder ("AC") to assist them.
Generally speaking, childminders must be registered with the Government of Jersey under the Day Care of Children (Jersey) Law 2002 ("Day Care Law"). Registration may have conditions attached, such as a prohibition on looking after more than a specified number of pre-school age children ("pre-schoolers") at any one time. Applications may be made for exemptions from such conditions.
AC's conditions of registration prevented her from looking after more than three pre-schoolers at any one time. In order to look after Child A, AC sought and was initially granted a six-month exemption, temporarily increasing the number of children she could look after. This enabled her to take on Child A. When the six-month exemption period was coming up for expiry AC applied for an extension to the exemption period, so that she could continue looking after Child A. This would have enabled the childminder (AC) to continue looking after Child A and it would also allow Child B time alone at home with his mother. The application for an extension to the exemption period was rejected.
When the parents enquired about ways to challenge this decision they were told that any appeal would fail and that only the needs of A and the other children looked after by AC could be taken into account, not the needs of Child B.
The parents of Children A and B claimed that both children had been the subject of unlawful disability discrimination by the Minister. This was on the basis that in failing to grant AC an extension of the exemption the Minister had discriminated against A and B by failing to make reasonable adjustments.
Minister's strike-out application
The Minister sought to strike out the claims at an interim hearing on the basis that no service had been provided by the Minister to A. The Minister argued that:
- There was a distinction between the provision of a service and a public authority exercising a public function. A public authority discharging its statutory functions was not providing a service under the Discrimination Law.
- Even if the actions of the Minister did constitute a service that service was not provided to A. The only person who provided a service to A was the childminder, AC. It was AC that applied for and was refused the exception and not A.
- Finally the Minister argued that any challenge to the Minister's decision should have been made by way of application for leave to apply for judicial review.
Decision
The Tribunal looked closely at all of the relevant statutory provisions and at similar UK legislation. It held that actions of the Minister taken under Article 4 of the Day Care Law involved the provision of services to three sections of the public within the meaning of Article 22 of the Discrimination Law, namely:
- Child carers (such as AC).
- Children requiring childcare (such as A).
- The parents or carers of children requiring childcare.
This decision was for a number of reasons, including that:
"[The] definition of services in Article 1(1) of the Discrimination law includes services provided by "the States or any administration of the States". The Minister is the States and CEYS is an administration of the States. Had it been intended that regulatory functions undertaken by the States or administration of the States such as regulating childcare were to be excluded from the scope of the Discrimination Law I would have expected the Law to be explicit about this."
In addition the service was, indirectly, provided to Child A as well as to the childminder:
"The exemption requested by AC was for a named child. In exercising his powers under Article 4 the Minister is providing a service to AC but also to A."
As a consequence, the strike-out application failed.
Comment
This judgment is an interesting indication of the broad scope of the Discrimination Law and the careful consideration that needs to be applied by organisations working with members of the public.
Viberts provide advice and representation in all aspects of employment and discrimination law, both to individuals and to organisations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
