Transgender Discrimination

In the case of Hoffmann v Court Caribbean Law Practice, the Employment Rights Tribunal confirmed that it is not automatically unfair to dismiss an employee due to their transgender under section 30 of the Employment Rights Act 2012.

Also see the news item entitled Additional Award for Automatic Unfair Dismissal.

Please note that the Employment (Prevention of Discrimination) Act 2020 (E(PD)A) does not apply to transgender discrimination. See section 3(2) of the E(PD)A. 

Transgender Discrimination Laws in England

In England, the Sex Discrimination (Gender Reassignment) Regulations 1999 came into force on 1 May 1999. These transgender discrimination laws can now be found in the Equality Act 2010. Also, the Gender Recognition Act 2004 allows a transgender person to obtain legal recognition for their acquired gender - and change the recorded sex on their birth certificate from male to female or vice versa.

Disability Discrimination

See the below comments about the Rights of Persons with Disabilities Bill. 

The Labour Clauses (Concessions) Act 2024

Labour Clause 

Under section 4(1)(a) of the Labour Clauses (Concessions) Act 2024 (LC(C)A) - the Government may suspend or revoke a concession (e.g. a tax exemption) that has been granted to an employer - if the employer has failed to comply with a labour clause - in the 2nd Schedule of the LC(C)A) 2024. For example, the 6th labour clause states that - 

"6. An employer shall recognize the freedom of their employees to be members of a registered trade union and recognize their right to bargain collectively."

If, e.g. an employer recognises the trade union, ABC, for the purposes of collective bargaining. And 60% and 35% of the employees in the bargaining unit are members of the trade unions ABC and XYZ respectively. Does the 6^th labour clause mean that the employer must also recognise the trade union, XYZ, for the purposes of collective bargaining? (See the below comments dated May 2024.)

The 6th labour clause is not complemented by trade union recognition/derecognition legislation¹. 

Labour Law

The Government may also suspend or revoke a concession (e.g. a tax exemption) that has been granted to an employer - if the employer has failed to comply with a labour law, e.g. the Employment Rights Act 2012 (ERA). See section 4(1)(b) and the 3rd Schedule of the LC(C)A 2024.

The definition of a concession can be found in section 2 of the LC(C)A 2024.

Out-of-Court Settlements

The LC(C)A 2024 may provide an incentive for an employer to reach an out-of-court settlement for a labour clause/law claim.  If one assumes, e.g. in the case of an unfair dismissal claim (UDC), that a Court must rule that the employer has failed to comply with the ERA 2012 - in order for a concession to be suspended or revoked. See section 2.4.2 Litigation or Out-of-Court Settlement? in the topic entitled Disciplinary Procedures (Barbados).

An employer may argue that the Government's suspension or revocation of a concession is an abuse of power - if the suspension or revocation is not based on a Court's ruling. Because only a Court has the legal authority to determine - whether or not an employer has failed to comply with the ERA 2012, e.g. whether a dismissal is unfair.

How will the LC(C)A 2024 Operate in Practice?
 
It is unknown how the LC(C)A 2024 will operate in practice. For example, if one assumes that a Court must rule that an employer has failed to comply with the ERA 2012 - in order for a concession to be suspended or revoked. Will the Government suspend or revoke a concession - 

• After the Employment Rights Tribunal (or as the case may be after the Court of Appeal or the Caribbean Court of Justice) has ruled that an employer has failed to comply with the ERA 2012?
• Within a certain time-limit (e.g. one year) after a Court has ruled that an employer has failed to comply with the ERA 2012?
• By considering factors such as the size and resources of an employer - if the employer has failed to comply with the ERA 2012?

Hopefully, the practical operation of the LC(C)A 2024 will be explained by regulations made under section 6 of the LC(C)A 2024.

-----------------------------------------------------------------------------------------------------------------------

1. Further information about trade union recognition can be found on the Ministry of Labour's website.

Please note that it is automatically unfair to dismiss an employee for a trade union membership reason: section 30(1)(c) of the Employment Rights Act 2012. And it is unlawful to discriminate against a person (e.g. a job applicant or an employee) on the grounds of their trade union affiliation: section 3(2)(d) of the Employment (Prevention of Discrimination) Act 2020.

Is it Time to Review the Minimum Wage?

A National Minimum Wage (NMW) and a Minimum Wage for Security Guards came into force on 1 April 2021.

Paragraph 125(iii) of the Blue-Ribbon Advisory Committee Report (27/1/21) states that – 

“The national minimum wage should be reviewed in 2022 and every 3 years thereafter."

The NMW was not reviewed in 2022, 2023 or 2024.

In March 2024, the Government announced that the NMW will be reviewed. A video of the announcement is available on YouTube.

Who is Entitled to the National Minimum Wage?

A person must be an employee¹ in order to be entitled to the NMW. Please note that only a Court has the legal authority to determine whether a person is an employee for the purposes of the NMW. The Court (e.g. the Employment Rights Tribunal) must do so as per the 1st Schedule of the Employment Rights Act 2012.

------------------------------------------------------------------------------------------------------------------------

1. Section 2 of the Minimum Wage Act 2017 (MWA) states that an "employee" has the meaning assigned to it by section 2 of the Employment Rights Act 2012.  The MWA 2017 is silent about other types of jobs or work (e.g. commission-only sales jobs or piecework) - where an employee is not paid according to the number of hours for which they have worked. See section 1.7 Piece Rate Pay of the ILO’s Minimum Wage Policy Guide.

75 Year Old Employee was Unfairly Dismissed

In the case of Wood v Jada Builders Inc, Ms Woods’ retirement age was 66 years. However, she was allowed to continue working after her retirement age - until she was dismissed at the age of 75 years. The Tribunal ruled that Ms Wood’s dismissal was unfair. And she was entitled to claim that her dismissal was unfair - even though she was dismissed after her retirement age. See paragraphs 4.1 - 4.2 of the case transcript.

Redundancy Selection Policy

The Tribunal said that it was possible that the employer's "Oldest in, First out" redundancy selection policy may amount to unlawful age discrimination. The Tribunal (at paragraph 6.7) also said that -

“This was a missed opportunity to test the age discrimination provision in the Act. The Respondent’s (Jada Builders Inc.) “oldest in, first out” policy, which is documented nowhere in the manual or elsewhere, is on its face discriminatory. Age and no other factor informs its application. We are of the view, that had it been pleaded and argued, this case would have invited serious discussion on, and consideration of, an award (i.e. an award of up to 52 weeks’ wages) for age discrimination, protection against which is enshrined in section 30(1)(c)(xi)(A)…” 

For further information about the additional award for unlawful age discrimination - see the news item entitled Additional Award for Automatic Unfair Dismissal.

 

Analysis

Extending an Employee's Retirement Age 

An agreement about extending an employee’s normal retirement age (e.g. from 66 to 67 years) must be in writing. The agreement must also clearly state the terms and conditions of employment (TCE) - under which the employee will continue to work after their normal or extended retirement age. If the TCE have not changed - then the agreement must say so.  

Hence, it would be easier for an employer to convince a Tribunal that the reason for an employee’s dismissal is retirement - if the employee is dismissed on their extended retirement age (e.g. 67 years). 

In the case of Grant v Barbados Beach Club, the Tribunal ruled that Mr Grant's retirement dismissal was fair. The Tribunal in the Wood's case distinguished the facts of both cases at paragraph 6.6 of the case transcript.

Also see the news item entitled Government’s Statement About Retirement Age.

Redundancy Consultation

It is best HR practice to consult every employee about their redundancy dismissal.

An employee's redundancy dismissal will be unfair - if the workforce will be reduced by 10% or more - and their employer did not follow the consultation requirements set out in sections 31(4) - (6) of the Employment Rights Act 2012 (ERA).

For example, in the case of BAMC v Wickham (CA), the Court of Appeal ruled that Mr Wickham’s redundancy dismissal was unfair - because his employer did not follow such consultation requirements.

The Court of Appeal (at paragraph 40) stated that - 

“As counsel for the Appellant (i.e. the BAMC) contended, correctly in our view, under section 31 of the Act, the employer is permitted the option to consult directly with the employee or his representative (subsection (6)), namely, the trade union recognised for the purpose of bargaining on behalf of that employee - (subsection 4(b)).” 

Individual or Direct Consultation

Mr Wickham was a senior manager at the Barbados Agricultural Management Company Ltd (BAMC). The Court of Appeal ruled that the BAMC did not directly consult Mr Wickham about his redundancy dismissal for the purposes of section 31 of the ERA. Mr Wickham was not aware that he was being made redundant. Even though he was aware of the redundancies being made at the BAMC. And he was involved in the consultation process about those redundancies (e.g. he wrote a list of employees who were to be made redundant).

The Court of Appeal (at paragraph 57(a)) stated that - 

"The consultation with the employee proposed for redundancy by section 31(4)(b) and (6) is consultation with that employee qua individual employee and not qua his position or office, such as supervisor, head of department or as chief executive officer, for examples."

Consultation With a Recognised Trade Union 

The BAMC argued that the Sugar Industry Staff Association (SISA) could undertake consultation on Mr Wickham’s behalf - even though he was not a member of the SISA. The Court of Appeal agreed and stated (at paragraph 57(c)) that -

 “…subsection 31(4)(b) does not stipulate a relationship of membership between the union recognised by the employer for the purpose of bargaining and the affected employee. Rather, it demands a relationship of bargaining agency between the affected employee as a member of the bargaining unit for which the union is recognised as a bargaining agent by the employer.”

At the Tribunal hearing, the BAMC did not argue that there was a relationship of bargaining agency between Mr Wickham and the SISA (see paragraph 53).  Hence, the Court of Appeal did not entertain the BAMC’s argument - about whether there was such a relationship - because the argument had not been raised at the Tribunal hearing. See paragraphs 57(c) - 60 of the case transcript.

Special Circumstances Defence

Under section 31(6)(c) of the ERA - an employer may argue that it was not “reasonably practicable” to consult its employees about their redundancies due to "special circumstances".

In the case of Cox-Jordan v World Gift Imports Ltd, the Tribunal ruled that the employer’s failure to consult its employees about their redundancies was not due to special circumstances: see paragraphs 32, 33, 40 – 43.

Also see the news item entitled Jobs Replaced by Technology and note section 40 of the ERA.