Employment 2022 Comparisons

The main changes that occurred in Barbados' employment law over recent years (as of 5 July 2022) are as follows.

The Employment (Prevention of Discrimination) Act 2020 (the “Discrimination Act”) was enacted on 28 July 2020. Its key objective is to protect employees from discrimination. It contains a number of prohibitions in favour of employees, including a prohibition against an employer from requiring an employee to answer questions in relation to, or undergo a test for, a medical condition as a precondition to entering into a contract of employment or as a condition for the continuance of employment.

The Minimum Wage (National and Sectoral Minimum Wage) Order 2021, which came into effect on 1 April 2021, was established in order to:

• increase the national minimum wage in Barbados;
• increase the sectoral wage for security guards; and
• revoke the Wages Councils (Wages Regulation) (Shop Assistants) Order 2012.

The Domestic Employees (Rate of Pay and Hours of Duty) (Amendment) Order 2021, which came into effect on 1 April 2021, amends the rate of pay provided for in the Domestic Employees (Rate of Pay and Hours of Duty) Order 1982 by aligning the new rate of domestic employee pay with the new national minimum wage.

COVID-19

The main legislative and policy/sectoral guidance initiatives taken in order to effectively manage labour-related issues arising during the COVID-19 crisis are set out below.

• The Severance Payments (Amendment) Bill 2020, passed on 16 June 2020, temporarily amended the Severance Payments Act (SPA), Chapter 355A. The amendment was put into operation from 1 June 2020 and ceased to have effect on 31 July 2020. Amendments to the SPA mainly provided for an employee’s temporary right to severance pay for lay-off or short-time working arising as a result of government-ordered lockdowns to curb the spread of COVID-19 in Barbados. The Bill included supplementary provisions relating to those severance payments.
• Various consecutive emergency management orders (individually, Barbados Emergency Management (COVID-19) Order 2020, 2021, and 2022 where applicable) have been promulgated by the government, setting out temporary directives, including the regulation of persons who would be permitted to attend their place of employment in person.
• During Barbados’ early experience of the effects of the pandemic, it was proposed by the Barbados Employer’s Confederation (BEC) that, although there is no statutory obligation to pay an employee who cannot work due to self-quarantine, it is still good practice for the employer to treat self-quarantine as sick leave and to follow the organisation's usual sick pay policies. It was also proposed to agree on the time being taken as special leave or holiday in accordance with the Holidays with Pay Act 2017-3. This guidance still applies and is widely followed.
• The BEC also offered early COVID-19-related guidance to the effect that, where an employee was ready, willing, and able to work, the employer should allow the employee to attend work. It further recommended the need to balance this against the employer’s responsibility to maintain a healthy and safe work environment in accordance with the Safety and Health at Work Act, Chapter 356. This guidance and related practice also continue to apply.

The distinction between “blue-collar workers” and “white-collar workers” is not specifically addressed by law or regulation in Barbados

Different Types of Employment Contracts

The following types of contracts are recognised within Barbados law:

• short-term;
• fixed-term; and
• indefinite.

Requirements for Employment Contracts

The Employment Rights Act 2012-9 (ERA) provides that a contract of employment may be “express” or “implied”. Further, where there is an express contract of employment, it may either be oral or in writing. 

A contract of employment is legally required to be agreed in order to commence an employment relationship and is specifically defined in the ERA as a “contract of service or apprenticeship”. The First Schedule of the ERA also establishes a (non-exhaustive) list of factors for consideration in determining whether the relevant contract creates an employment relationship, as opposed to that of a contract for services provided by an independent contractor.

Where some or all of the following terms exist in the relevant contract, an employer-employee relationship will be deemed to exist:

• an obligation on the part of the employee to give personal and exclusive service;
• a requirement for the individual’s work to be carried out within fixed hours, or at a workplace or workplaces specified or agreed by the employer;
• the entitlement on the part of the employee to holidays with pay; 
• a requirement for the work to involve the integration of the employee into the organisation of the business, including their adherence to its policies; and 
• a stipulation that the employee receive periodic remuneration payable on a stipulated basis (hourly, weekly or monthly) and all such payments to be subject to statutory deductions.

Maximum Working Hours

In accordance with the Shops Act 2015-30 (SA), the number of hours which can be required of an employee for work in any one (five-day) working week, excluding a one hour break for lunch each day, shall not exceed 40 hours. The daily requirement is stipulated to be no more than eight hours, excluding the lunch break, to run continuously from the employee’s start time to the conclusion of the working day.

Flexibility of Working Hours

Flexible arrangements may be possible, on agreement between employer and employee, in relation to the start time and end time of a particular working day. However, the required limitation of hours of work per week is maintained. Colloquially, this may be referred to as “flexitime”.

Part-Time Contracts

The ERA’s provisions apply to all employment contracts, including any part-time contract.

Overtime

The SA explains overtime as the number of extended hours which a person undertakes, voluntarily, to be employed. The SA also stipulates the specific rate of pay for overtime work. Where a person works overtime, they are entitled to be paid time and one half their ordinary rate. It is essential to note that no person shall be required to work overtime without their consent. 

In some cases, employers do not offer the option to work overtime and earn overtime pay. They may nevertheless stipulate in the employment contract that the employee may be required to work beyond the normal working hours set out in their contract, as a condition of their position, from time to time. The incidence of overtime practices tends to be higher in certain sectors depending on tradition, culture and also whether or not the relevant human capital is unionised.

Requirements for the Minimum Wage

Requirements for the minimum wage are set out in the Minimum Wage Act 2017-4 (MWA) and the specific sums stipulated, from time to time, are set out in a Minimum Wage Order.

The MWA states that relevant employers shall not pay to any employee any sum which is less than the sum in a Minimum Wage Order. These employers also shall not withhold any sum from an employee, other than an amount required for deduction in accordance with any enactment relevant to the MWA (eg, the Protection of Wages Act, Chapter 351).

Further, where an employer pays an employee an incentive-based payment, overtime payment, monetary allowance or any other additional sums, these payments shall not be discontinued, but shall, where terms and conditions of the employee’s employment contract and the duties performed require, continue to be paid in addition to the sum prescribed in the Minimum Wage Order. 

Bonus and Incentive Payments

As a matter of practice, payments which are incentive based and bonuses are given at the discretion of the employer, and provisions in connection with the same are usually included in the employee’s employment contract. There is no mandatory legislative or regulatory provision regulating this.

Vacation Leave and Vacation Pay

Requirements for vacation leave are set out in the Holidays with Pay Act 2017-3 (HWPA). Under the HWPA, an employee is entitled to receive vacation once they have completed 12 months of employment with an employer. Thereafter, an employee is entitled, under the HWPA, to three weeks' vacation per year of employment, during the second, third and fourth years of employment. In respect of and subsequent to the fifth year of employment, an employee is then entitled to four weeks' vacation per year. 

The HWPA states further that an employee may also be granted an annual holiday which is greater than the previously specified three and four-week periods. This greater period must either be:

• a part of the contract of employment;
• a part of a collective agreement (as negotiated by a union) which has been incorporated into the contract of employment or which is to be implied as a term of the employment contract; or
• granted by way of custom or practice at the place of work for years of service as an employee.

In accordance with the HWPA, vacation pay shall be an employee’s average pay for that annual holiday. The HWPA proceeds to stipulate the calculation of average pay for persons employed for a range of time periods. However, employees whose annual holiday is determined by their employment contract, or an implied term, or longer than the minimum period specified in the HWPA, shall be paid in accordance with the following calculation: the number of weeks given for annual holiday/52 X the total remuneration of the employee within that year of employment. 

Required Leave

The Employment of Women (Maternity Leave) Act, Chapter 345A states that every employee, in addition to her annual holiday, under the HWPA, is entitled to maternity leave. 

In respect of illness and disability, the ERA states that the absence of an employee from work is not to be treated as an interruption of their continuity of employment, where their absence occurred for particular reasons, including:

• that they were on sick leave (uncertified by a medical practitioner) for no more than two consecutive working days, provided that they had notified their employer of their absence on each of those two days;
• that they were on sick leave certified by a medical practitioner and provided the certificate of the medical practitioner to their employer; or
• that they were unable to work on account of an occupational disease or a work-related accident. 

Confidentiality, Morality and Termination

Employers are entitled to include certain provisions in respect of confidentiality and morality (non-disparagement) into employment contracts, and some employment contracts provide for the right of the employer to terminate the employee’s employment in these circumstances. While an employment contract may state that a breach of either of these provisions is grounds for disciplinary action, which may lead to termination, the ERA provides for various protections for employees not to be “unfairly dismissed”. There are well documented processes set out in the ERA in this regard. 

The employee is therefore entitled to rely on the legislated dismissal processes being fully and carefully carried out by the employer in order to ensure fair dismissal. In the event that an employee believes that they may have been unfairly dismissed, they may, under the ERA, lay a complaint with the Chief Labour Officer (CLO), who is entitled to escalate that complaint to the Employment Rights Tribunal (ERT). An employer is therefore prohibited from terminating an employee prior to observing and properly following these processes.

The Fourth Schedule of the ERA sets out the above-mentioned processes for fair dismissal, which must be carried out. However, the ERA mandates, as the main stages of the dismissal process:

• for a statement to be made in writing, by the employer, describing their reasons for dismissing the employee;
• for the employer to provide a written invitation to the employee to a meeting to discuss these reasons, and permit the employee to attend that meeting with a friend or union representative, where applicable; and
• for the employer to provide the employee with an opportunity to appeal those reasons for dismissal.

Non-compete Clauses

There is case law which is instructive for employers where employees breach the non-compete, non-solicitation and confidentiality clauses within their employment contracts (GasTOPS Ltd v Forsyth 2012 ONCA 134). The understanding is that an employee owes their employer an implied fiduciary duty of loyalty. This, in turn, creates an entitlement on the part of the employer to the employee’s loyalty, whether or not the employment contract contains written clauses prohibiting the employee from engaging in or facilitating activities which:

• compete with the employer’s business;
• poach customers or other employees of the employer; or
• utilise confidential information as a disservice to the employer.

The ultimate decision in GasTOPS established that the employee will be liable for damages to their former employer where an employee is found to have breached their fiduciary duty not to:

• unfairly compete with their former employer;
• solicit the employees from their employer;
• breach confidential information held by their former employer.

Further, where the new employer was found to be a device to aid an employee’s breach of their fiduciary duty “not to compete with their former employer”, the new employer may be ordered by the court to account for the consequential profits and to pay the same to the former employer.

Considerations for Specific Duration of Restriction under Non-compete Clauses

Employers are entitled to mandate certain time periods for restrictions under non-compete clauses, varying in length in different circumstances of employment. There is also case law which is instructive on this basis and there are some essential points to note. For instance, in Thomas v Farr plc and Hanover Park Commercial Limited CA, the employee was employed with an insurance broker in the social housing sector. Upon restructure of the company, the employee resigned and, among other things, sought a declaration that the non-compete clause in his contract was unreasonable and unenforceable. The High Court and the Court of Appeal both held that the 12-month non-compete restriction was reasonable and enforceable. It was taken into consideration that the employee was the managing director of the company and was therefore exposed to significant confidential information. It was further agreed that the non-compete restriction was not drafted too widely and the employee would still be able to earn a living and work in insurance, but just not in the competitive sector. The 12-month duration was considered reasonable on the basis that most housing association insurance policies were for more than 12 months.

It must be noted that this particular case may have been decided differently, in circumstances where the non-compete clause applied to the entire insurance sector (and not the social housing sector alone).

In Intercall Conferencing Services Limited v Steer 2007 EWHC 519, the employee was the head of training and personnel at the company. The employee’s contract of employment contained, among other things, an express confidentiality agreement and a six-month non-compete restriction, limited to named competitors. The employee resigned with immediate effect by email and advised his employer that he was leaving to work with one of the named competitors. The company applied for an injunction restraining the employee from working for the named competitor and from disclosing confidential information. The High Court granted the application by the company. The High Court concluded that the employee, in his training role and when substituting for the head of sales, was privy to sensitive confidential information, such as contact details of all customers, details of any sales approaches, employee salaries and sales incentives. It was agreed that this information was not in the public domain, was clearly confidential and would obviously be useful in soliciting customers as well as poaching key staff. It was found that the restrictions were not to be too wide or too vague (even though the restriction's ambit, in this case, was effectively worldwide as no restricted territory had been defined and the competitors had not been fully described in the covenant wording). The six month non-compete restriction was, however, upheld in light of the confidential information as well as the seniority of the employee’s new position with the competitor.

The following key points therefore arise:

• restrictive covenants, generally, will only be enforceable against senior staff and should not be required for junior staff;
• a 12-month non-compete clause can be enforceable where the employee is adequately senior and acquainted with a substantial amount of confidential information, and it can be agreed that the disclosure of such confidential information will be almost impossible to control;
• the upper limit for the duration of a restriction remains to be 12 months; and 
• worldwide restrictions can be enforceable in non-compete clauses where the clause is customised to the particular business/sector by identifying competitors and the relevant market.

Enforcement/Shift Away from Fiduciary Duty

In practice, it is accepted that, in local labour markets, there is more movement than in the past and the commercial sector is now more entrepreneurial. There is therefore some argument that the application of fidelity in an employer/employee relationship is on the decline. However, it remains essential that the employee is aware that any breach of the aforementioned types of terms in their employment contract can still come at a cost.

Non-solicitation clauses are subject to the same legal precedent as discussed in 3.1 Non-competition Clauses. An employer must therefore, at a minimum, also consider the following:

• the duration of the restriction under the clause;
• the seniority and access to confidential information which is available to the employee; and
• the business/sector which the restriction covers.

One of the main provisions set out in the Data Protection Act 2019 (DPA), which may apply to the employment sphere, is that which refers to principles relating to the processing of personal data.

The DPA defines a data controller as a person who, either alone or together with another person or persons, determines the purpose for, and the manner in which, any personal data shall be processed. Alternatively, a data controller may also be a person who is obliged to process data subject to a separate enactment.

The data controller is therefore mandated under the DPA to take all reasonable steps to ensure that the following persons, who have access to any personal data (eg, personal data of persons in an organisation for the purposes of their own employment), comply with the requirements as set out in the DPA. These relevant persons would be likely to include (but not necessarily be limited to):

• the data controller’s employees;
• the employer itself;
• a third-party contractor to the employer, for example, an external accountant;
• a payroll service provider; and
• a tax provider.

Under the DPA, some requirements are that personal data shall be:

• processed lawfully, fairly and in a transparent manner;
• collected for specified, explicit and legitimate purposes and not further processed in a manner not compatible with those purposes;
• kept in a form which permits identification of the data subjects for no longer than is necessary for the purposes for which the personal data is processed; and 
• processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.

The Immigration Act (IA), Chapter 190, states that no person shall engage or employ any person who is not a citizen of Barbados, permanent resident in Barbados or immigrant, unless there is a work permit in force covering that engagement or employment.

In accordance with the IA, any person who wishes to work in Barbados, and does not fall into the aforementioned category of persons (see 5.1 Limitations on the Use of Foreign Workers), must apply to the Barbados Immigration Department for a work permit and pay the prescribed fees.

Similarly, any person who desires to employ a foreign worker must make an application to the Barbados Immigration Department for a work permit in connection with the relevant proposed employee, and must pay the prescribed fees. Prior to proceeding to employ any foreign worker on whose behalf the employer is making the work permit application, the employer must exhaust all efforts in connection with hiring a local individual for the position and prove that these efforts have been made on application to the immigration department. Where the employer has found that no local person is adequately qualified to fill the role, it may then proceed with the relevant steps to hire the foreign individual.

The Barbados Immigration Department's website makes long-term as well as short-term work permits available to non-nationals. The long-term work permit is valid for up to three years, while the short-term work permit is valid for up to 11 months. The relevant work permit application forms (C-1, C-2 forms for long-term permits, and C-3 form for short-term permits) are available on the website of the Barbados Immigration Department for review and completion.

Trade unions command a strong position in Barbados and play a significant role in Barbadian society. Some of the general and discretionary powers which employers might otherwise enjoy are limited by the influence of trade unions. The Trade Unions Act, Chapter 361 (the “Unions Act”), is the statute which governs the trade unions of Barbados. 

Trade Unions

The Congress of Trade Unions and Staff Associations of Barbados (CTUSAB) was officially registered as a trade union organisation in August of 1995. Later that month, the CTUSAB was launched as an umbrella body with the following founding members:

• The Barbados Workers Union;
• The National Union of Public Workers;
• The Police Association;
• The Fire Service Association;
• The Barbados Union of Teachers; and 
• The Barbados Association of Medical Practitioners.

The list of members stated above is by no means exhaustive but is indicative of the wide range of unionised professions in Barbados. 

The Role of the Trade Union

The CTUSAB has progressively developed as the authoritative voice of Barbadian labour, mostly because it represents the shared views of its members on various national issues in respect of industrial relations and socio-economic and political issues. The CTUSAB also works intensively to continuously strengthen the labour movement by influencing policy decisions which impact workers in Barbados and the wider population. Apart from the statutory provisions of the Unions Act, the CTUSAB has its own constitution in place. This constitution specifically has several aims and objectives, including:

• promoting the interests of its members, and generally seeking to advance the social and economic welfare of the workers of Barbados; and
• the securing of legislation which will safeguard and improve the economic security and social welfare of workers, as well as the security and welfare of all people.

The CTUSAB remains free of any partisan political affiliation. Separately though, the CTUSAB and the other unions wield important political power because their members form a large part of the electorate.

Collective bargaining agreements (individually a “collective agreement”) used in Barbados, provide for “informal” rights and obligations at a group level. In contrast, employment contracts provide for formal rights and duties, and must comply with specific labour legislation such as the ERA, the HWPA and the SA.

In Barbados’ unionised environment, a collective agreement can only be amended through the collective bargaining process.

The collective bargaining process has operated very effectively in Barbados to draw parameters around the rights of employers and management to alter, amend, modify, withdraw, terminate or revoke terms agreed collectively which regulate affairs in the workplace. The unions in Barbados have long proved to be active protectors of employee rights and negotiate robustly in that context against employers seeking to make adverse changes.

Collective agreements are respected in Barbados as important sources of guidance and standards in respect of the rights, responsibilities, interests and expectations of employees as well as employers. Although they are technically not legally binding, they cannot, in practice, be broken lightly by employees without proper negotiation. Attempts to flout them have and do result in union-led industrial action. Although such action is not frequent, it does occur and is consistent with the pro-worker labour culture in Barbados.

Requirements in Respect of Termination

The motivation for an employer to terminate an employee’s contract is required a posteriori. Therefore, as discussed in 2.5 Other Terms of Employment, an employer must be able to prove the rationale for terminating an employee’s contract of employment. 

Procedures in Respect of Termination

The Fourth Schedule of the ERA sets out “Dismissal and Disciplinary Procedures” which must be followed for a proper, lawful dismissal. The Fourth Schedule is structured in three parts:

• Part A – Rules to be taken into account under Section 29(4)(b) of the ERA;
• Part B – Standard Disciplinary Procedures; and
• Part C – Modified Disciplinary Procedures.

Section 29 of the ERA relates to the fair dismissal of an employee and states that the burden is on the employer to show the reason for the dismissal of the employee. Where the employer complies with the requirement to show a substantial reason for the dismissal of the employee, the question as to whether the dismissal was indeed fair shall depend on whether the employer acted reasonably or unreasonably in treating the reason given as sufficient, and whether the employer complied with Part A of the Fourth Schedule.

In addition to complying with the requirement to give a material reason for the dismissal of the employee, where the reason for dismissal is related to the employee’s capability to perform their work or where the reason is related to the employee’s conduct, the employer is not entitled to dismiss the employee without informing the employee of the accusation against them and giving them an opportunity to state their case, subject to the Standard Disciplinary Procedures and the Modified Disciplinary Procedures set out in Parts B and C, respectively, of the Fourth Schedule (Section 29(5) of the ERA).

Collective Redundancies

According to Section 31(4) of the ERA, where an employer will, by a collective dismissal, reduce its workforce by 10% or more, prior to the dismissal of any employee, the employer shall comply with the following requirements to:

• conduct certain consultations in respect of, for example, the proposed method of selecting the employees who will be dismissed and the proposed method of carrying out the dismissals, with regard to any agreed procedure or time period; and
• supply the employee or, any trade union recognised for bargaining on behalf of that employee, and the CLO with a written statement of the reasons for and other particulars related to the dismissal.

The consultations referenced above, shall, according to the ERA, begin “no later than six weeks before any of the affected employees is dismissed and shall also be completed within a reasonable time”.

Notice Periods

The ERA specifically provides for the rights of the employer and employee to a minimum notice period. Various notice periods are also set out in the ERA as it relates to the contracts of employment for hourly, daily, weekly or monthly paid employees who have been continuously employed for one year or more.

Requirements for Severance Payment Where Notice Given or Payment Made in Lieu

Severance payments are not required on top of notice or payments in lieu of notice. However, it is required that, apart from payment to the employee of their salary in lieu of notice, the employer is required to also make the following payments:

• for any period of vacation not taken within that employment year; and
• any other monies related to benefits held by the employee under the employment contract for the duration of the notice period.

Related Points to Note

In respect of payments in lieu of notice, the ERA states that such a payment will not be satisfactory where the amount provided by the employer is less than the sum, net of any tax or other lawful deductions, that the employee would have been entitled to receive from the employer, if the employee had worked throughout the notice period as opposed to opting for payment in lieu of notice.

No other advice or authorisation shall be required in relation to this point, apart from the requirements as set out under the ERA.

Severance for Redundancy

The employee’s right to severance payment is provided for in the SPA. It arises where on, or after the appointed day, an employee who has been continuously employed for the requisite period:

• is dismissed by an employer because of redundancy; 
• is laid off or put on short-time working as provided for in the SPA; or
• is dismissed by an employer because of a natural disaster.

In this case, an employer is liable to pay the employee a sum calculated subject to the First Schedule of the SPA.

Under the First Schedule, the severance payment is required to be calculated by reference to the period, ending with the relevant date, during which the employee has been continuously employed. That period shall also be computed in accordance with the Second Schedule of the SPA, which states that the employee’s period of employment must be computed in terms of weeks. Once an employee is employed for at least 104 weeks, that employee, upon redundancy, is entitled to severance pay.

It must also be noted that, where the nature of an employee’s work is seasonal, an employer will only be liable to pay an employee severance where the event in respect of which the payment is claimed occurs during the course of the season. This can be particularly important in sectors such as agriculture and tourism, which can be seasonal in Barbados.

Timing for the Payment of Severance for Redundancy

Severance payment must be paid to an employee within two months of it becoming due, or within such longer period not exceeding four months. In the event that a severance payment that is required to be paid by an employer has not been paid within the specified period, interest calculated on the unpaid severance payment, at such rate as the minister of finance may fix by order, is payable by the employer for the expiry of the period.

Summary Dismissal

Summary dismissal is recognised as a circumstance where an employer dismisses an employee instantly without notice or pay in lieu of notice, and it is normally based on the gross misconduct of that employee. 

Required Procedure

As raised in 2.5 Other Terms of Employment and further discussed in 7.1 Grounds for Termination, the procedures and formalities outlined in the Fourth Schedule of the ERA must be followed carefully, even in an event such as summary dismissal. Where the procedures and formalities are not properly followed, the employee may submit a complaint to the CLO which may be escalated to the ERT. 

Consequences of Failure to Follow Requisite Process

The ERT may rule in favour of the employee and award compensation to the employee, subject to the Fifth Schedule of the ERA. The employer will therefore be ordered by the ERT to pay the employee an award of compensation consisting of certain amounts, as stipulated by the Fifth Schedule of the ERA.

Termination Agreements

Termination agreements, including release provisions, are permissible. However, the specific procedures as set out under the Fourth Schedule of the ERA must first be followed in connection with the dismissal of any employee, before providing that employee with a termination agreement.

Statutory Requirements

We are not aware of any statutory requirements as to the enforceability of releases, provided that the Fourth Schedule procedures are observed. 

The Ministry of Public Service

In January 2019, the Ministry of the Public Service (the “Ministry”) commenced operation. The Ministry was created via an amalgamation of the following former entities:

• The Ministry of the Civil Service;
• The Ministry of the Civil Service, Personnel Administration Division; and
• The Training Administration Division.

The reason behind this amalgamation was to reposition the Ministry in order to give it a more strategic focus on the delivery of human resources services across the public service.

There are also the Public Sector General Orders (the "General Orders"), enacted in 1996 and updated from time to time by the government, and various government ministers hold responsibilities under this enactment. The General Orders provide numerous orders surrounding some of the following points:

• employee conduct;
• the appointment of officials and temporary staff; and 
• disciplinary rules and dismissal for various types of offences and various types of employees.

Protections for Employees

Some of the provisions of the General Orders protect casual employees in the public service in the context of disciplinary proceedings. One such is an order to the effect that a casual employee may, at their own request, be represented by a friend or a representative of an accredited trade union in any proceedings conducted under the relevant rules. The same protections exist for temporary employees and members of the Security Guard Service. 

Repercussions for Representatives

Disciplinary investigations and hearings of protected civil servants who may be represented as described above can be escalated to the courts. These court proceedings can evolve into very lengthy and complicated affairs, requiring representatives/employees to retain counsel.

Grounds for Unfair Dismissal

As previously mentioned under 2.5 Other Terms of Employment, an employee has the right “not to be unfairly dismissed”. Dismissal in certain circumstances will unlawfully infringe this right under the ERA. Examples include:

• a dismissal which took place while the employee was absent from work for a period of less than one year, although they were certified by a medical practitioner to be incapable of work throughout the entire period of the absence as a result of an occupational disease or a work-related accident; or
• a dismissal which took place while the employee was absent from work for less than a period of 12 consecutive months or a period amounting to 12 months in any one period of 24 consecutive months, although they were certified by a medical practitioner to be incapable of work throughout the period, or the periods, of the absence as a result of sickness, not an occupational disease or a work-related accident.

This right will also be violated where the reason for dismissal is any of the following, among others:

• the employee participated in trade union activities outside, or with the consent of the employer, during working hours;
• the employee had, or was believed to have, HIV/AIDS or any other life-threatening illness or disease; 
• the employee was absent from work as a result of the performance of a national duty; or 
• the employee refused to carry out an unlawful instruction given to them by the employer.

Consequences

The employee may lay a complaint to the ERT on the ground that they were unfairly dismissed by their employer, provided that the complaint is submitted to the ERT:

• prior to the end of the period of three months beginning with the effective date of termination; or
• within such further period as the ERT considers reasonable, in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that three-month period.

As discussed above in 7.3 Dismissal for (Serious) Cause (Summary Dismissal), the ERT may order the employer to pay the employee compensation as stipulated by the Fifth Schedule of the ERA.

Grounds for Anti-discrimination Complaints

There are various grounds for anti-discrimination claims set out under the Discrimination Act. Some of them include the following:

• discrimination by a fellow employee;
• discrimination by an employer;
• failure of an employer to make a reasonable adjustment in respect of an employee; and
• discrimination in connection with job creation and recruitment.

Applicable Relief

Complaints are generally addressed to the CLO and submitted to the ERT. Where the ERT finds that a complaint under the Discrimination Act is well founded, the Tribunal shall make a declaration to that effect. The ERT may also order the respondent to do, among other things, any of the following:

• pay compensation to the complainant;
• make available to the complainant specific opportunities and privileges unfairly denied to them; or
• undertake counselling or training designed to eliminate discrimination.

The ERT

The ERA has established the ERT as the proper employment forum. The ERT’s function is to enforce the rights conferred upon persons by the ERA, and to exercise its jurisdiction to make awards and other decisions in accordance with the ERA. However, an appeal lies to the Court of Appeal in accordance with the rules of court on a question of law from any decision of, or otherwise arising in any proceedings before, the ERT.

Class Action Claims

Class action claims to the ERT are available, as exemplified in the matter of Cutie Lynch v the National Conservation Commission, ERT/2014/064.

The Court

Representations in court are generally made by an attorney-at-law of the employee’s choice.

Pre-dispute arbitration agreements are enforceable; however, this does not prevent the employee from proceeding to submit a complaint to the ERT. 

There are no claims available for costs in any forums except for the Magistrates' Court and the High Court; therefore, there is no ability for an employee to make a claim for attorney's fees and to be given such an award in respect of legal costs incurred in a matter conducted before the ERT.