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Employment Rights Act – its impact


Cecil McCarthy

Employment Rights Act – its impact

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I do not believe the significance of the proclamation of the Employment Rights Act 2012 in May 2013 is fully appreciated in Barbados. Unfair dismissal is only one of the changes ushered in by the legislation.
In Britain, for the period April 1, 2012 to March 31, 2013, there were 49 326 claims for unfair dismissal, which accounted for only 15 per cent of all claims made to employment tribunals.
If there is an area of legislation that has impacted the English legal system more significantly than the employment rights legislation, it does not readily come to mind.
In Barbados, the Employment Rights Act 2012 will have a very significant impact on our legal system as well as the practices of employers in particular. 
It is arguably the most significant piece of labour legislation enacted in Barbados within the last two decades.
When you read the content of the legislation in its final form, you can’t help but regard it as a significant victory for labour.
I myself became interested in the legislation when in early 2001 I was invited to deliver an address to the Petroleum Dealers Association on the then Draft Employment Rights Bill at a time when it was felt that the passage of legislation was imminent.
I have taken an interest in the legislation ever since and must say that I was surprised it was proclaimed last year in its current form.
One remarkable aspect of the legislation is the mandatory statutory requirement for procedural fairness where a dismissal is “for any reason related to:
(a)  the capability of the employee to perform any work; or (b) the conduct of the employee (see 29(5) of the act).
There was a time when the corresponding English legislation was essentially the same. However, after about four years the law was amended and the English law concerning “procedural fairness” is not as strict as ours.
In the case Alexander et al vs Bridgen Enterprises Ltd (2006), the Employment Appeals Tribunal discussed the relevant English law at the time.
Fair or unfair dismissal
For clarity, paragraphs 14, 15 and a part of paragraph 16 of the judgment of Elias J., which recite the English provisions at the time and the tribunal’s interpretation of them, are set out:
“14. Section 98(4) of the ERA 1996 is as follows:
“Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
a. depends on whether in the circumstances (including the size and administration of the employer’s undertaking), the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employer, and
b. shall be determined in accordance with the equity and substantial merits of the case.”
15. Section 98A of the act makes further provisions about procedural fairness as follows:
“(1) An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if –
a. one of the procedures set out in Part 1 of Schedule 2 of the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,
b. the procedure has not been completed, and
c. the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employer shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed procedure.
(3) For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 of the Employment Act 2002, completion of such a procedure or failure to comply with the requirement of such a procedure shall be determined by reference to regulations under Section 31 of that act.
16. We consider below the effect of these provisions. In brief, however, it is that there is an automatically unfair dismissal where there is a failure fully to comply with any relevant statutory procedure. Compliance with the statutory procedure does not, however, mean that the dismissal is necessarily fair or cannot be challenged on procedural grounds. It may still involve a breach of section 98(4) . . . .” 
It is submitted that with respect to dismissals related to capability and conduct, a dismissal will be automatically unfair where an employer fails to comply with the statutory procedure outlined in Section 29(5) of the Employment Rights Act, 2012.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]

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