Government’s Statement About Retirement Age

On 18 March 2022, the Government issued a statement about retirement age. The statement is available at the Barbados GIS website.

Analysis 

The Government’s statement about retirement age wrongly refers to section 30(1)(c)(xi)(A) of the Employment Rights Act 2012 (ERA). Because this section of the ERA was deleted by the 2^nd Schedule of the Employment (Prevention of Discrimination) Act 2020 (EPDA).

It is an anomaly that a public sector employer may rely on public sector laws to defend a retirement age discrimination claim as per section 22 of the EDPA. But a private sector employer cannot rely on any law to defend such a discrimination claim. Hence the EDPA and the ERA must be amended as follows.

Amendments to the EPDA 

The EPDA must be amended to exclude any employee from claiming unlawful age discrimination – if their employer has a normal retirement age (NRA) (e.g. 65, 67 or 70 years). And the employee was dismissed on the grounds of retirement on or after the NRA.

A contractual retirement age (CRA), an employee's awareness of - or agreement to a NRA - does not prevent the employee from successfully claiming - that their retirement dismissal amounted to unlawful direct age discrimination. In other words, a CRA, or such an awareness or agreement to NRA - does not override an employee’s discrimination rights - under the EPDA or section 31(1)(d) of the ERA. Please note paragraph 93 of Chefette v Harris (CCJ).

Amendments to the ERA

The ERA must be amended to exclude any employee from claiming unfair dismissal - if their employer has a NRA (e.g. 65, 67 or 70 years). And the employee was dismissed on the grounds of retirement on or after the NRA.

(The author respectfully disagrees with the Tribunal’s decision in the case of Grant v Barbados Beach Club. The author's opinion about the case can be viewed in the below comments.)