Tuesday, 29 May 2012

Is it OK to be refused a Job because I am different?

Does the Constitution protect me against discrimination?

Our Constitution is the “top law” on St Helena.  It sets out how our government is made up, how our island must be run and how our government must treat us.  All our Ordinances are required to be consistent with it, and any that aren’t are “overruled” by the Constitution.

The Constitution says (in Clause 5)

“... every person in St Helena is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, without distinction of any kind, such as sex, sexual orientation, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, age, disability, birth or other status, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following...”

Therefore we should all be treated equally regardless of whether we are male or female, “gay” or “straight”, black, white, brown or pink, born here or not. It does not matter what language we speak, which faith we follow (if any) or if we “able bodied” or physically or mentally impaired. Nor does it matter how young or old we are or whether we want an airport or we don’t. WE ARE ALL EQUAL in that the government or the law cannot treat us differently to each other.

For example you cannot be taxed at a higher rate for being against the airport, or given a longer prison sentence for the same crime because you are over 60. In fact these examples sound ridiculous, which is an indication of how well, in some respects, our rights are protected.

So can I be refused a job on the grounds that I am female or disabled?

Despite all of the above, the answer is: Yes.

If you work for government you are protected both by the constitution and the Government’s own employment policies, which expressly forbid discrimination

But it’s different if you work in the private sector.

If you work in the private sector the Constitution does not protect you, because the Constitution only applies to acts of government. Relationships between private citizens, or between companies and others are not protected by the constitution.  That is left to local legislation.

So does local legislation protect me from discrimination?

It should, but there are gaps.  The new Employment Ordinance (which is so current it’s not yet in force) does not protect private sector employees from discrimination, except possibly when it comes to unfair dismissal. It will still be perfectly legal to pay women less than men, to refuse to employ someone because they follow a different faith or because they are too old, too fat or just were/were not born here.  If you work for an enlightened employer they may have employment policies that protect you, once you are employed.

When the HRCBC raised this with government we were told that we do not need such legislation because things like that do not happen here. I’d welcome your views.  Have you been discriminated against in employment?  If you have, please contact me – in confidence – with the details.

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