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 2nd 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.
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.
12 comments:
Tony, have you read the Employment Rights Tribunal’s judgment in Grant v Barbados Beach Club?
Yes. And I respectfully disagree with it. I would have approached the Grant case as follows.
1. What was the reason for Mr Grant’s dismissal? Answer: Some other substantial reason.
2. Was Mr Grant dismissed for “a reason that RELATES to age”? Answer: Yes. Mr Grant was dismissed (or retired) - because he had reached the age of 65.
CONCLUSION
Mr Grant’s dismissal was AUTOMATICALLY unfair - because he was dismissed for “a reason that RELATES to age” under section 30(1)(xi)(A) of the ERA.
Therefore, the Tribunal did not need to consider –
1. The substantive or procedural fairness of Mr Grant’s dismissal, e.g. if his employer acted within the "range of reasonable responses" or followed the standard disciplinary procedures.
2. Any labour law or case law in any other country, e.g. England.
I acknowledge that the ERA may not have intended that an employee’s retirement could be an unfair dismissal.
Please note that section 30(1)(xi)(A) of the ERA is now defunct.
Surely, the Employment Rights Act did not intend that a retirement could be an unfair dismissal.
Well, if that is the intention of the ERA – then the ERA should say so – as I suggested in the above news item (dated 18 March 2022).
Hello Tony. I did not see anything in the Act about a dismissal being ‘automatically unfair’.
Under section 27 of the ERA, an employee has the right not to be unfairly dismissed.
Section 30(1) of the ERA states that “a dismissal of an employee contravenes the right conferred on him by section 27 where” - the employee is dismissed for a reason that is listed in section 30(1) of the ERA.
In other words, an employee’s dismissal is AUTOMATICALLY unfair – if they have been dismissed for reason listed in section 30(1) of the ERA.
If an employee’s dismissal is AUTOMATICALLY unfair. That is the end of the matter. There is no defence for such a dismissal.
Thanks Tony
Also see a news item (dated 8 September 2020) entitled “Additional Award for Automatic Unfair Dismissal”. You can find the news item by “scrolling down” the news page.
Have you seen the GIS reminder (dated July 22, 2022) about age of retirement in the private sector?
Yes. Unfortunately, the reminder does not state whether or not - the Government will provide a statutory defence against retirement age discrimination claims - for private sector employers. If such a defence exists – a private sector employer can still determine the normal retirement age (e.g. 65, 67 or 70 years) of an employee.
For example, the normal retirement ages at ABC Ltd and EFG Ltd are 65 years and 70 years respectively. The statutory defence will apply to an ABC Ltd employee - who is retired on or after the age of 65 years. And to an EFG Ltd employee - who is retired on or after the age of 70 years.
An ABC Ltd employee cannot argue that they should be retired on or after the age of 70 years - because their normal retirement age is 65 years - and they are not an EFG Ltd employee.
In the case of Smith v NUPW, the Tribunal did not address the issue about whether Ms Smith’s dismissal - was automatically unfair - due to age discrimination. See paragraph 50 of the case transcript. The case transcript is available on the Ministry of Labour’s website at:
https://labour.gov.bb/wp-content/uploads/2023/03/ERT.2020.043-Roslyn-Smith-v-NUPW-dated-March-29-2023.pdf
Ms Smith was dismissed on 30 April 2019 (see paragraph 7). Hence, she was dismissed - before the Employment (Prevention of Discrimination) Act 2020 came into force.
In the case of Wood v Jada Builders Inc, the Tribunal (at paragraph 4.1) stated that –
“…The Act provides protection to employees against discrimination based, among other things., on age …. It would be incongruous for the legislation to provide that protection whilst at the same time limiting the applicability of the Act by reference by age.”
A retirement dismissal is based on age. Doesn’t the Act also provide protection against a retirement dismissal?
Or does society’s acceptance of certain forms of age discrimination (e.g. a retirement dismissal) mean that such discrimination is not unlawful under the Act?
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