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.

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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.

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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.