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.