Contents
1. Introduction
2. Practical Implications for Employers
2.1 Reason for the Dismissal
2.2 Fairness of the Dismissal
2.3 Written Records
2.4. Assessing an Unfair Dismissal Claim
2.4.1 Preliminary Issues
2.4.2 Litigation or Out-of-Court Settlement?
2.5 Assessing the ERT's decision
2.7 Prejudging a Disciplinary Meeting
1. Introduction
On 13 July 2015, the Employment Rights Tribunal (ERT) ruled that Mr Leacock’s dismissal was unfair - because KPMG did not follow the Standard Disciplinary Procedures set out in the Act - before it had dismissed him. Hence, the ERT ordered KPMG to pay a compensatory award of $77,176.92 to Mr Leacock: Leacock v KPMG.
Please note that 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 law, e.g. the Employment Rights Act 2012. See the news item entitled The Labour Clauses (Concessions) Act 2024.
2. Practical Implications for Employers
The Leacock case (and following case law) provides the following lessons for employers who wish to carry out a fair dismissal in accordance with the Act.
2.1 Reason for the Dismissal
The five reasons for a fair dismissal are capability, misconduct, redundancy, illegal employment and some other substantial reason: sections 29(1)(b) and 29(2) of the Act.
The reason for an employee’s dismissal will determine - the course of action that an employer must take - in order for the employee’s dismissal to be fair. For example, if the reason for an employee’s dismissal is capability or misconduct – the employer must follow the Statutory Disciplinary Rules and Procedures - before the employee has been dismissed. The employee's dismissal will be unfair - if the employer fails to do so. See 2.2 Fairness of the Dismissal
2.2 Fairness of the Dismissal
Employer's Disciplinary Policy: A term of an employer's policy (e.g. a disciplinary policy) does not override the employer’s legal obligations under the Act. Therefore, an employee’s dismissal can be unfair – although the employee has committed a disciplinary offence. And the disciplinary policy states that the employee will be dismissed for such an offence: see paragraphs 93 - 95 of Chefette v Harris (CCJ).
An employer must keep written records to prove that it followed the Standard Disciplinary Procedures (SDP) before dismissing the employee on the grounds of poor job performance; ill health or misconduct (section 29(5) of the Act), e.g. the employee’s invitation to a disciplinary meeting. See Template: Invitation to Disciplinary Meeting. A prudent employer will always follow the SDP or a procedure that reflects the SDP.
An employer should assess the strength of an unfair dismissal claim, e.g. if the employer did not follow the Standard Disciplinary Procedures (SDP) - before it dismissed an employee on the grounds of poor job performance; ill health or misconduct - is it cheaper and less time-consuming to reach an out-of-court settlement?
An employer may wish to offer an out-of-court settlement in the light of the Caribbean Court of Justice's ruling in Chefette v Harris. See the news item entitled CCJ Reduces Award for Unfair Dismissal.
A prudent employer would not wish to waste its money and time unsuccessfully defending an obvious unfair dismissal (or automatic unfair dismissal) at an Employment Rights Tribunal (ERT) hearing.
For example, in the case of Haynes v Barbados Beach Club, it was obvious that Ms Haynes' dismissal was unfair - because Barbados Beach Club did not follow the SDP - before it had dismissed her. And the ERT (at paragraph 8.1) stated that -
2.5 Assessing the ERT's Decision
An employer or an employee can appeal to the Court of Appeal on a “question of law” as per section 48 of the Act.
An employer must not prejudge the outcome of a disciplinary meeting or an appeal meeting, e.g. in the case of Leacock v KPMG, KPMG had prejudged the outcome of a meeting with Mr Leacock because it had written his dismissal letter before the meeting had taken place.
1. An employer should use the three-stage “Burchell test” for investigating cases of alleged misconduct. The test is set out in the 2nd paragraph of BHS Ltd v Burchell (EAT/108/78). And the test is still good law: paragraphs 31 – 35 of Reilly v Sandwell MBC [2018] UKSC 16. The "Burchell test" may not apply to a case where an employee has confessed that they are guilty of misconduct: see paragraphs 47 - 51 of Compass Group UK v Okoro (EAT/0055/08).
2. Practical Implications for Employers
The Leacock case (and following case law) provides the following lessons for employers who wish to carry out a fair dismissal in accordance with the Act.
2.1 Reason for the Dismissal
The five reasons for a fair dismissal are capability, misconduct, redundancy, illegal employment and some other substantial reason: sections 29(1)(b) and 29(2) of the Act.
Therefore, if an employer states the reason/s for an employee’s dismissal, e.g. on a Termination of Services/Lay-off Certificate – the employer must adhere to those reason/s when it defends the employee’s unfair dismissal claim at an Employment Rights Tribunal hearing. This will also apply where an employer has provided the written reasons for an employee's dismissal at the employee's request as per section 23(2) of the Act. Please note 23(3) of the Act.
2.2 Fairness of the Dismissal
An employer must consider the following matters - if they wish to carry out a fair dismissal.
Range of Reasonable Responses: Section 29(4)(a) of the Act requires an employer to act reasonably (or within the range of reasonable responses) - in treating the reason for a dismissal - as a sufficient reason for dismissing an employee. See paragraphs 41 - 44 and 51 - 53 of First Citizens Bank v Brathwaite (CA) for further information about the range of reasonable responses.
In cases of alleged misconduct, the three-stage “Burchell test” 1 is a useful test for determining whether the employer has done so: paragraph 85 of Chefette v Harris (CCJ).
Statutory Disciplinary Rules: An employee's dismissal will be unfair - if their employer did not comply with an applicable Statutory Disciplinary Rule (SDR) set out in Part A of the 4th Schedule of the Act. For example, Rule (b) in Part A of the 4th Schedule of the Act states that -
“except in the case of gross misconduct, an employee should not be dismissed for his first breach of discipline”.
Therefore, a dismissal will be unfair – if an employee has been dismissed for their first breach of discipline – but the reason for the dismissal (e.g. misconduct) was wrongly classified as gross misconduct. See paragraphs 89 - 91 of Chefette v Harris (CCJ). Theft, fraud and fighting are examples of gross misconduct.
The SDRs do not apply to a case where there has been no "breach of discipline", e.g. a redundancy dismissal: see paragraph 25 of Bascombe v BWU Cooperative Credit Union Ltd.
Statutory Disciplinary Procedures: An employee's dismissal will be unfair - if their employer did not follow the Standard Disciplinary Procedures (SDP) - before dismissing them on the grounds of poor job performance, ill-health or misconduct: section 29(5) of the Act.
For example, in the case of Haynes v Barbados Beach Club, the Employment Rights Tribunal ruled that an employee's dismissal was unfair - because their employer did not follow the SDP. Even though the employee was dismissed for committing gross misconduct, i.e. fighting with another employee. Please note paragraph 6.18 of the case transcript.
Automatic Unfair Dismissal: See the news item entitled Additional Award for Automatic Unfair Dismissal.
Employer's Disciplinary Policy: A term of an employer's policy (e.g. a disciplinary policy) does not override the employer’s legal obligations under the Act. Therefore, an employee’s dismissal can be unfair – although the employee has committed a disciplinary offence. And the disciplinary policy states that the employee will be dismissed for such an offence: see paragraphs 93 - 95 of Chefette v Harris (CCJ).
2.3 Written Records
An employer must keep written records to prove that it followed the Standard Disciplinary Procedures (SDP) before dismissing the employee on the grounds of poor job performance; ill health or misconduct (section 29(5) of the Act), e.g. the employee’s invitation to a disciplinary meeting. See Template: Invitation to Disciplinary Meeting. A prudent employer will always follow the SDP or a procedure that reflects the SDP.
2.4 Assessing an Unfair Dismissal Claim
2.4.1 Preliminary Issues
An employer should check the following three preliminary issues to determine whether a person is qualified to make an unfair dismissal claim (UDC).
2.4.1 Preliminary Issues
An employer should check the following three preliminary issues to determine whether a person is qualified to make an unfair dismissal claim (UDC).
- Employment Status: A person must be an employee - in order to make an UDC.2 Please note that only a Court has the legal authority to determine whether a person is an employee for the purposes of an UDC. The Court (e.g. the Employment Rights Tribunal) must do so as per the 1st Schedule of the Act.
- Length of Employment: An employee must have been continuously employed for at least one year - in order to make an UDC.3
- Three-month Time Limit: As a general rule, an UDC must be presented to the Chief Labour Officer within the three-month time limit. See the news item entitled Unfair Dismissal Claim was Out of Time.
Section 51 of the Act states that the "Act does not bind the Crown but applies to statutory corporations".
2.4.2 Litigation or Out-of-Court Settlement?
An employer should assess the strength of an unfair dismissal claim, e.g. if the employer did not follow the Standard Disciplinary Procedures (SDP) - before it dismissed an employee on the grounds of poor job performance; ill health or misconduct - is it cheaper and less time-consuming to reach an out-of-court settlement?
An employer may wish to offer an out-of-court settlement in the light of the Caribbean Court of Justice's ruling in Chefette v Harris. See the news item entitled CCJ Reduces Award for Unfair Dismissal.
A prudent employer would not wish to waste its money and time unsuccessfully defending an obvious unfair dismissal (or automatic unfair dismissal) at an Employment Rights Tribunal (ERT) hearing.
“The Respondent (i.e. Barbados Beach Club) mulishly defended this action (i.e. Ms Haynes’ unfair dismissal claim) despite having conceded that its disciplinary process was fraught with irregularities.”
The ERT (at paragraph 6.18) also stated that -
"The law is pellucid. Absent a fair disciplinary process, even a justifiable dismissal is unfair. That Counsel (i.e. Barbados Beach Club's lawyer) could admit to the existence of so many procedural irregularities and still seek to defend the fairness of the dismissal is absurd."
Please note that the ERT cannot make a costs order: paragraphs 29 - 30 of Chandler v BTMI. Also, the ERT cannot consider an employer's counterclaim: Greaves v Finisterre Attorneys.
See the section Out-of-Court Settlements in the news item entitled The Labour Clauses (Concessions) Act 2024.
An employer or an employee can appeal to the Court of Appeal on a “question of law” as per section 48 of the Act.
2.6 Legal Arguments
A Court will reject certain legal arguments, e.g. a legal argument that -
A Court will reject certain legal arguments, e.g. a legal argument that -
- is based on English labour laws that do not apply to Barbados, e.g. see paragraphs 4 - 7 of Johnson v Ian Griffith Mortuary Service and paragraphs 45 - 49 of BAMC v Wickham (CA).
- is based on inapplicable public sector laws if the claimant worked in the private sector, e.g. see paragraphs 16 and 26 of Grant v Barbados Beach Club.
- was not raised at a lower court, e.g. see paragraphs 57(c) - 60 of BAMC v Wickham (CA).
See 2.4.2 Litigation or Out-of-Court Settlement?
2.7 Prejudging a Disciplinary Meeting
An employer must not prejudge the outcome of a disciplinary meeting or an appeal meeting, e.g. in the case of Leacock v KPMG, KPMG had prejudged the outcome of a meeting with Mr Leacock because it had written his dismissal letter before the meeting had taken place.
2. See the definitions of an "employee" and a "contract of employment" in sections 2 and 3 of the Employment Rights Act 2012 respectively. Whether a person is an employee or self-employed will depend on the facts and circumstances of each case. For example, if a delivery driver at a particular business is found to be an employee – it does not mean that all delivery drivers are employees. The factors that will be considered by a Tribunal when it is considering whether a person is an employee are listed in the 1st Schedule of the Act. The list is not exhaustive. Also note Sagicor Insurance Company v Carter (Barbados High Court, 12 October 2007).
3. See sections 4 and 27(3) of the Act.