Equality at work
This section sets out a brief overview of anti discrimination legislation on the Isle of Man. For further information see the Guides to Employment Rights page.
While the Department of Economic Development is only responsible for anti discrimination legislation covering employment there is some other legislation which has been brought forward by other Government Departments which deals with discrimination in the provision of goods and services. Such legislation is signposted towards the end of this page.
Discrimination on the ground of sex, marriage, or civil partnership
Under the Act it is unlawful to discriminate in employment on the grounds of:
- a worker’s sex; or
- because he or she is married; or
- because he or she is in a civil partnership.
Discrimination against a person on the grounds of sex or because he or she is married or in a civil partnership may be either direct or indirect, and may also include victimisation for asserting one's rights.
Direct discrimination is:
- treating a person less favourably by act or omission, on the grounds of that person's sex; or
- treating a married person less favourably than an unmarried person of the same sex on the grounds of marital status; or
- treating a person in a civil partnership less favourably than a person of the same sex on the grounds of the civil partnership.
Indirect discrimination is applying an unjustifiable requirement or condition that (i) can be met only by a significantly lower proportion of one sex or married people or people in a civil partnership, and (ii) cannot be met by the person in question, who is of that sex or married or in a civil partnership.
Victimisation is taking action against anyone for asserting his or her rights, including the right to equal pay rights, or for giving evidence or information in proceedings in this connection.
Coverage of the Act includes protection against discrimination in respect of:
- access to training,
- dismissal (including redundancy); and
- post employment (e.g. provision of references).
The Equal Pay provisions in the legislation require employers to treat men and women the same for purposes of pay and other terms of their contracts of employment where the woman (or man) is engaged:
- on the same or broadly similar work to a man (or woman) (“like work”); or
- on work rated as equivalent to work done by a man (or woman) under a job evaluation scheme.
The Code of Practice on Sex Discrimination in Employment 2001 provides practical guidance to employers on eliminating discrimination on grounds of sex and marriage and on promoting equality of opportunity. The Code also provides information as to those steps it is reasonably practicable for an employer to take for the purpose of preventing his or her employees from discriminating unlawfully.
The protection afforded by ESDA overlaps with protection afforded by legislation which contains individual employment rights, principally the Employment Act 2006 and regulations made under that Act. In certain cases a claimant may make a complaint under ESDA, as well as or instead of the Employment Act 2006, in respect of the same matter, for example:
- detriment or dismissal of an employee in connection with pregnancy, maternity or family leave;
- refusal to allow an employee flexible working;
- unfair dismissal of an employee on grounds of sex, or because he or she is married or in a civil partnership;
- less favourable treatment of part-time workers.
In the latter case, since more women than men work part-time, rules, criteria or practices which disadvantage those working or wishing to work part-time may amount to indirect sex discrimination depending on the circumstances of the particular case.
Explicit protection is provided to part-time workers under the (Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2007). Under these Regulations part-time workers have the right not to be less favourably treated than comparable full-time workers, unless the difference in treatment can be objectively justified. The Regulations apply both to all benefits conferred by a worker's contract and also apply to any other type of less favourable treatment on the ground of a worker's part-time status.
More detailed information on sex discrimination is contained at section 6 of the guide “Isle of Man Employment Rights and Responsibilities: a Guide for Employers, Employees and Workers”. Other useful documents include the following:
Employment (Sex Discrimination) Act 2000: The Questions Procedure - For use in bringing a sex discrimination claim.
Genuine Occupational Qualifications - A Good Practice Guide for Employers – This sets out certain cases where discrimination on the grounds of sex, marital status or civil partnership is permitted:
Discrimination on the ground of race
(The Employment Act 2006 section 125)
It is unlawful to dismiss an employee on the ground of his or her race. This covers the following two circumstances:
- direct discrimination: where the employer treats the employee less favourably than if he or she had been of another racial group;
- indirect discrimination: where the employer applies a standard which, although applied to all employees, can be met only by a considerably lower proportion of the employee's racial group, cannot be justified irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied, and which is to the employee’s detriment because he or she cannot meet or attain it.
Discrimination on the ground of religion or belief
(The Employment Act 2006 section 126)
It is unlawful to dismiss an employee on the grounds that he or she:
- professes or does not profess a particular religious belief,
- is or is not a member of a particular religious denomination, or
- attends or does not attend religious worship of a particular kind.
There are some exceptions where a dismissal may be lawful if the employer can show it was justifiable.
Other aspects of the employment relationship, that is recruitment or less favourable treatment during employment, are not covered by this legislation.
Discrimination on the ground of sexual orientation
(The Employment Act 2006 section 127)
It is unlawful to dismiss an employee on the ground of his or her sexual orientation. Sexual orientation is defined as an orientation towards:
- persons of the same sex,
- persons of the opposite sex, or
- persons of the same sex and of the opposite sex.
The Act does not make any provision for exceptions to the principle of non-discrimination.
Discrimination on trade union grounds etc.
(The Employment Act 2006 Sections 1-7; 29-34; 67; 120)
A worker has the right not to suffer any detriment (e.g. withholding benefits, or opportunities for transfer, training or promotion):
- to prevent, deter or penalise him or her for membership of a registered trade union;
- to prevent, deter or penalise him or her for taking part in the activities of a registered trade union or for making use of its services;
- to compel him or her to be a member of a trade union;
- for the worker's failure to accept an inducement that he or she relinquish trade union membership etc.;
- to penalise him or her for not making a payment (e.g. a trade union subscription, or a donation to charity in lieu) if he or she is or is not a member of a particular trade union.
It is also unlawful to refuse employment on such grounds or to terminate a worker’s contract for trade union reasons.
Discrimination against ex offenders
After a period of good behaviour ('rehabilitation period') certain convictions are 'spent', that is, treated as if they had never occurred, depending on the sentence imposed. For the relevant periods see section 3.3.2 of the Guide “Isle of Man Employment Rights and Responsibilities: a Guide for Employers, Employees and Workers”.
A job applicant does not have to disclose a spent conviction. Failure to disclose a spent conviction by an applicant is not a proper ground for an employer to refuse to engage that person.
Dismissal of an employee for failing to disclose a spent criminal conviction will be unfair provided that the employee has a year’s service.
However, a conviction for which any of the following sentences is imposed is never spent:
- a life sentence;
- custody for a term of more than 30 months; and
- detention during Her Majesty's pleasure (in relation to certain young offenders).
In addition, the Rehabilitation of Offenders Act 2001 (Exceptions) Order 2001 as amended by the Rehabilitation of Offenders Act 2001 (Exceptions) (Amendment) Order 2005 contain lists of excepted professions, offices, employments, work and occupations in respect of which all convictions must be disclosed, even those which are 'spent'. These include: medical practitioners; vets; nurses; lawyers; accountants; police; traffic wardens; teachers; social workers and youth workers.
The Protection from Harassment Act 2000
The latter Act also permits a victim or potential victim of harassment to bring civil proceedings, including application for an injunction against the harasser. An employer can be liable for the consequences of any harassment committed by an employee in the course of his or her employment in breach of the Act. An offending course of conduct under the Act must involve conduct on at least 2 occasions. Some forms of harassment could be a criminal offence under this legislation.
Discrimination on the ground of disability
Discrimination in employment on the grounds of disability is not yet dealt with specifically in the Island’s employment law. However, dismissal of a person for an inability arising from disability or for disability occurring during employment may be unfair under general unfair dismissal principles if the employer cannot show the Employment Tribunal that a dismissal was reasonable in accordance with principles of equity and the substantial merits of the case.
The Code of Practice on Disciplinary and Grievance Procedures provides some guidance to employers on dealing with performance affected by health and capability issues.
Advice on disability issues can be found from the following sources:
- The Department’s Disability Employment Service provides support, including the discretionary financial assistance, for disabled people who are already in the workplace or who are looking for work.
- The Disability Access Office can help with any access issues from Disability Awareness Training to Building Audits. Telephone 619937 or email firstname.lastname@example.org.
- Access information for a number of organisations and businesses on the Isle of Man is provided via DisabledGo.
Discrimination on the ground of age
Discrimination in employment on the grounds of age is not yet dealt with specifically in the Island’s employment law.
In addition, the existing position is that those employees who have reached their employer's normal retiring age common to both men and women or, if there is no such age, 65, lose protection against unfair dismissal except in the cases of those types of dismissal which are automatically unfair under IOM employment law. These are set out at section 8.3 of the Guide “Isle of Man Employment Rights and Responsibilities: a Guide for Employers, Employees and Workers”. In addition, cases can be brought by workers under the Employment (Sex Discrimination) Act 2000 irrespective of a claimant’s age.
The Human Rights Act 2001 incorporates the European Convention on Human Rights into Isle of Man law. There have been a number of significant rulings in the UK and elsewhere which may affect, among other things, disciplinary hearings, employee privacy, religious beliefs and trade union rights. More information on the Act is available from the Chief Secretary’s Office website and from the website of the UK Equality and Human Rights Commission.
Proposal for an Equality Bill
The Department is presently working on a Bill which will deal with discrimination comprehensively on the following grounds:
- sexual orientation;
- gender reassignment.
Further information will be published about this Bill shortly.
Anti-discrimination legislation covering goods and services
This Act brought forward by the Department of Home Affairs (DHA) makes it unlawful to discriminate in the provision of goods and services on the grounds of race, for example refusing to rent a car or to provide healthcare to a person because of their race, nationality or ethnic or national origins. The Act does not cover discrimination in employment. DHA has published an accompanying Code of Practice.
This Act brought forward by the Department of Social Care is concerned with discrimination against disabled people in the provision of goods and services, education and access to buildings. The Act is not yet in force.
The UK Equality and Human Rights Commission
The website of the Equality and Human Rights Commission and the ACAS (equality) website provide useful guidance on good practice in the application of equality. Please be aware, however, that Isle of Man legislation is less extensive that UK legislation at this time.