Anyone interested in eliminating employment discrimination in Cayman should read this account of an appeals case in the UK about an alleged case of racial discrimination.
Okay, done that? Really? All of it? Well go back, click the link and read it!
What I find interesting about this piece is the degree of sophistication in the language used to talk about discrimination in the UK which seems to be pretty much lacking in our system for dealing with discrimination cases here in Cayman. Consider the following:
Indirect discrimination is a practice, policy or rule which applies to everyone in the same way, but it has a worse effect on some people than others. The UK Equality Act says it puts you at a particular disadvantage.
A PCP is a “provision, criteria, or practice” resulting in indirect discrimination.
In fact, take a look at this page which gives an overview of UK discrimination law as contained in the UK Equality Act.
Here, by contrast, is the relevant extract from our current Labour Law (2011):
80. (1) No person (whether an employer or an employee) shall discriminate with respect to any person’s hire, promotion, dismissal, tenure, wages, hours or other conditions of employment, by reason of race, colour, creed, sex, pregnancy or any reason connected with pregnancy, age, mental or physical disability (provided their ability to perform the job is not impaired), political belief or the exercise of any rights under this or any other Law.
Now, while I’m no legal scholar, there does seem to be something of a gulf between the laws of the two lands on this issue. (To be fair, gender discrimination, which has its own law, is an exception).
I have long argued that much of the disillusionment with the Cayman Islands Immigration system among Caymanians is due to something of an expectation gap whereby Caymanians believe the system should somehow protect them from discrimination, when in fact that is not explicitly in the department’s mandate. Nor does the current process involve enough inspection of a company’s hiring process (nor any formal protocols for whistleblowing on the part of the unsuccessful candidate) that would enable the immigration authorities to detect discrimination where it exists.
Nor, in fact, is it even clear to whom you would report suspected (or actual) discrimination were you to fall victim to it, nor what would be done about it. (The Department of Labour and Pensions presumably, which does not appear to have a website).
The current consultation draft of the new Labour Relations Bill upgrades the language slightly, as follows.
86. (1) No person (whether an employer or an employee) shall discriminate with respect to any person’s hire, promotion, dismissal, tenure, wages, hours or other conditions of employment, by reason of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, age, mental impairment or physical disability (provided that ability to perform the job is not impaired), pregnancy or any reason connected with pregnancy, property, birth or other status, except that where preference is given to a Caymanian in relation to hiring, such preference shall not be regarded as discriminatory.
In my view, were Cayman to significantly improve its legal framework and enforcement apparatus around discrimination and to educate the public as to what represents discrimination (in all the various forms outlined by the UK Equality Act) and what does not, and what evidence is required in each case, this would go a long way to assuaging some of the ire currently directed by Caymanians at the immigration process.
Of course this would need to be accompanied by a timely adjudication process that allowed both sides to be heard and entitled all parties to a fair hearing, with the backing of the courts for appeals, not to mention a process of educating employers on best practice to avoid any unintentional discrimination in their hiring process.
Either employers would be forced to clean up their act and end practices that discriminate (whether deliberately or unwittingly) against Caymanians, or a competent authority would have to rule in favor of the employer and outline in detail why the circumstances did not constitute (or the evidence did not demonstrate) discrimination on the part of the employer. Either way, everyone would know where they stood, and that justice was attainable.
While discrimination may be very difficult to eliminate altogether, as the UK rules show, there is a lot more that can be done.