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EVERYDAY LAW: Fair procedure for dismissal


Cecil McCarthy, [email protected]

EVERYDAY LAW: Fair procedure for dismissal

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THE Employment Rights Act, 2012, changed the law of employment fundamentally. Among other things, it introduced the concept of unfair dismissal, requiring complaints to be initiated before the Employment Rights Tribunal.

In addition, the new legislation substantially altered the law relating to dismissal from employment by providing that the employer must give a fair reason for such.

Prior to the act, the following words of Lord Reid in Malloch v Aberdeen (1971) were applicable to Barbados: “At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant’s only remedy is damages for breach of contract.”

Prior to the new legislation, whether an employee could get damages depended not on whether he was treated fairly by his employer or whether the employer had good reason to dismiss him. Instead, it was based on whether the employer had breached the contract.

At common law, in most cases observing the contract meant that the employee was given the notice to which he was entitled.

One of the fundamental changes introduced by the Employment Rights Act is that the employer is now required to show a fair reason for the dismissal. The effect is that a dismissed employee can now challenge his employer’s action in respect of his termination on the ground that it is unreasonable.

The dismissal must not only be for a fair reason but very significantly, the act requires that there be a fair procedure as well.

The requirements of substantive fairness are set out in Section 29(1) to (4). The employer is required to show one of the potentially fair reasons such as capability, conduct and redundancy.

Fair reason

However, having established a fair reason for dismissal, the employer must also meet the procedural requirements of Section 29(5) which reads:

“Notwithstanding subsection (1), an employer is not entitled to dismiss an employee for any reason related to

(a) the capability of the employee to perform any work; or

(b) the conduct of the employee; without informing the employee of the accusation against him and giving him an opportunity to state his case, subject to the standard disciplinary procedures and the modified disciplinary procedures set out in Parts B and C, respectively, of the Fourth Schedule.”

In Alexander v Bridgen Enterprises Ltd. (2006), the United Kingdom Employment Appeals Tribunal considered similar English legislation, the effect of which was set out at paragraph 21 of the judgment as follows:

“Step 1: statement of grounds for action and invitation to meeting.

1.(1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: meeting.

2. (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information.

Step 3: appeal.

3. (1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision.”

Similar procedures are required by employers in Barbados in order to comply with the provisions set out in 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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