2018: the year of new regulations

Tuesday 20 March 2018

2018 looks like being something of a perfect storm for Jersey businesses. Not only will they have to negotiate the increasing uncertainty caused by Brexit, they will also have to navigate an exceptionally large volume of new pieces of legislation which are set to affect the way they do business.

For those organisations of sufficient scale to have staff who can focus on the various new requirements, it will be business as usual; but if you are reading this as an owner/manager, someone who is in charge of actually bringing the money in, while also looking after HR, marketing, IT, facilities and operations, then it might be time to take a very deep breath before going any further.

That’s because 2018 looks like being the busiest year for new requirements on Jersey businesses since the Employment Law came into force in 2003. While the economy needs you to focus on actually being a commercial success, it might appear that the legislators have other plans.

Richard Plaster, a Director of Law at Work explained to Express exactly what businesses were being asked to get to grips with this year:

Richard Plaster: at a high level, we have the GDPR European Regulations which has been moved into the Jersey Data Protection Legislation both for Jersey and Guernsey. We have Disability Discrimination coming in, in September which is the last stage of the Discrimination legislation. We have Family Friendly changes, and flexible working changes, due to come in September, but some of it will likely come in the following September as well. We have the potential of migration law changes, so changes around licences, work permits, criminal checks - the details are still being fleshed out. And we have the final stage of the age discrimination rules, which take away the ability for employers to retire their staff at an age, let’s say 65, or 67 or whatever the company retirement age is. What we are seeing this year is pretty unprecedented other than the 2003 example of the new Employment Law.

Express: Why do you think this is all happening at once?
Richard Plaster: Well it’s been the perfect storm really, and in perfect storms things happen which you’ve got no control over - so the GDPR regulations, that’s Europe-wide by the end of May. The discrimination one: that has been well known that that is coming in this September because it is part of a programme. Family friendly: the Social Security Minister has been quite clear that she wanted to get this in before the end of her term, well the end of the term is nigh, so that’s happening. Migration: well that could have been brought in, as we know, any time over a number of years but of course it’s coming in now. I guess there is some political pressure.

Express: What do you think can be done to help employers through this year?
Richard Plaster: I think we need to get the legislation confirmed as soon as possible, and that is happening with Disability and Family Friendly which are due to be debated soon. As soon as we’ve got certainty, you can start saying, “…well okay what does it mean to me?” GDPR that’s out now. The regulatory process is somewhat behind, let’s say the UK. At the moment, when we’re asking the question, “…how does GDPR or the Data Protection Regulations affect employers?” we’re having to look to the UK, and the Information Commissioner there, to see what they are saying.

The regulations are the same, more or less, so we are having to use that as a reasonable response. It’s not ideal, but I think once we’ve got our own Information Commissioner up and running that will help.

Pictured: The new GDPR regulations comes into force on 25 May.

Express: Of that list, are there ones that employers are more or less concerned about?
Richard Plaster: There are two groups: those that are blissfully unaware and are still not seeing what’s coming. Then I think of those that are aware, most of our clients are sort of focussing on one or two bits dependent on their industry. Hospitality are naturally concerned about migration. They’re struggling now with the licence system, the same with the retailers, so those groups are rightly concerned about what it will mean for them. Will they be able to get people in the future? Agriculture are in the same boat.

I think some of the organisations who are dealing with a lot of data are focussed more on the Data Protection/GDPR regulations because that’s their business, and I think HR Departments as a whole are suddenly becoming aware of the GDPR issues, because a lot of their work deals with peoples’ details, personal data and some of that is sensitive and some of it’s not, and they have suddenly become very aware and are saying, “…crumbs, I need to do something about this. What do I do?
And where do I go to get information?”

Express: So, what are the major grey areas?
Richard Plaster: Well the big gaps at the moment are Family Friendly and Disability. Both are due to go to the States shortly, so until they go through we can’t be sure what will happen. Will there be any amendments? Will there be any changes? And until the day you don’t know. So that is grey, and until those votes take place we have that uncertainty. I think then with Family Friendly, it’s fairly straightforward: if you’re expecting, you have this entitlement. If you’re adopting you’ve got that entitlement. If you’re entitled to parental leave that is what you get. It’s pretty prescriptive, so it’s just a case of working it through.

Disability discrimination, like the other discriminations, is far more difficult and I think with disability it is particularly difficult because the definitions of disability we’ve got to work through, and there’s quite a bit of, “…is this person suffering from a disability or not? What’s a reasonable adjustment? What isn’t? What reasonable adjustments do I have to make to my premises?” Those things are starting to become clearer, but exactly what an employer should do, or what a property owner should do - and don’t forget disability is not just an employment issue, it is out of the work environment as well, it’s about premises, goods and services and so on.

Pictured: The proposed new disability law is due to be debated in the States Assembly today.

Express: So, it’s not satisfactory for an employer to say, “…well, none of my staff have a disability therefore I have nothing to worry about?”

Richard Plaster: No. If you’re a retailer for instance, you are providing goods and services, people are coming into your premises. If you are providing any services, you have to ensure that you are taking reasonable adjustments for those that might be wishing to to access that, and you have this phrase “reasonable adjustments.”
That is quite a wide band, and it’s quite difficult to describe where that band stops, and where that band starts and what’s in the middle. Some of it is blindingly obvious, some less so, and I think with disabilities as well, we’re not only talking about physical disabilities. There is a natural tendency that if you think disability, you think
wheelchairs.

I mean it’s a bit crude, but there is that natural tendency…it’s much wider than that. Jersey’s social survey said 14%, I think it was, of Islanders have a disability which affects them in their day-to- day life, and in that it would include mental illnesses, anxiety, depression and a whole host of other disabilities, which are not necessarily seen. They wouldn’t look at someone across the table, and say, “…actually that person has a disability which is affecting their day-to- day life,” and therefore as an employer, or maybe as a service provider, you’ve got to make some reasonable adjustments.

That’s going to be quite tricky, and harder to deal with, and we’re not talking about employers not wanting to do the right thing. Even those who want to do the right thing, and are trying to do the right thing, are going to struggle and staff training is going to be particularly important - getting a real awareness within your organisation is going to be really important too.

Express: How much of an issue is this going to be for the small business which rents an office upstairs, and that building has no disabled access?
Richard Plaster: Well, the access bit, as the legislation is drafted at the moment, has a two-year delay. So, you have got two years - but even if you start today, once you’ve negotiated with your landlord, you’ve got Planning permission, you’ve found a contractor, you’ve sorted out your by-laws and you’ve got the work done - as an example, we’re having our disabled access put in at the moment in our own offices, and we’re more than two years from the day we said, “…actually we need to do something” - and it’s not quite finished yet. So, two years is tight.

Be that as it may, an employer or a landlord or a provider needs to look at the premises they’ve got, and consider whether they can make reasonable adjustments. There are people out there who are getting trained in order to help employers do that, something we’re also doing in order to go through what is reasonable and what’s not.

Express: What’s your advice?
Richard Plaster: Our advice is look at each piece of the legislation. There is guidance out there. There are training courses happening. Some of it is free, run by different organisations. Some of it is paid, which is more in depth. Get yourself informed. You need to know how these different pieces of legislation will affect your business. In terms of urgency, GDPR is coming in first. That is in May, so look at that one first.
Family Friendly and Disability Discrimination are coming in September, so you could argue that you’ve got a little bit more time - and if you’ve only got restricted time, get your order right, and look at the data issues because everybody, every organisation is affected. We all hold personal data. Even if it’s just our employees, chances are you’ve got client data, you’ve got mailing lists, you may have sensitive data within your organisation about employees and/or clients. All of it needs looking at and some of the retention issues of how long you keep data are also quite key.

This interview appears in the March edition of Connect Magazine. Click here to read it.