BARBADOS EMPLOYERS’ CONFEDERATION: Today’s policy, tomorrow’s case law
RECENT EVENTS in various public and private fora in Barbados have placed increasing focus on workplace policies and procedures. They have raised queries such as whether retirement can be discriminatory and whether changes to terms, such as hours of work and compensation reached through collective bargaining, have any force beyond that of a gentleman’s promise. Such events have also reflected the delicate balance between legislation and the traditionally voluntaristic industrial relations environment.
Against such a backdrop, I recently came across a case, which reveals that the terms in an employment policy reached through negotiated agreement may be found to be incorporated into individual contracts of employment thus creating rights that may be pursued through court action. It also reveals that there can be a fine yet important line between differential and discriminatory treatment.
In Taylor v Secretary of State for Scotland (2000), Taylor was employed as a prison officer within the Scottish Prison Service under terms that provided for retirement at 55; unless there was agreement to work until 60, subject to the right of either party to terminate by giving three months’ notice. When Taylor turned 55, it was agreed that his retention beyond the minimum retirement age “is at the department’s discretion and subject to regular review. Retirement may therefore be effected at any time and is subject to three months’ notice on either side”.
The following year, the prison service issued a circular, which set out an equal opportunities policy that undertook “to offer opportunities on an equal basis to all staff regardless of gender, race, religion, sexual preference, disability or age”. Attached to the circular was a copy of the Scottish Prison Service Equal Opportunities Statement, which had been agreed with the trade unions, and a copy of the Scottish Prison Service Code of Practice, which in paragraph four was said to have been designed to encourage staff to apply the equal opportunities statement “to everything, we do”.
Two years later, the prison service introduced changes to its retirement policy, which resulted in all employees over 55 being give six months’ notice of dismissal. The purpose of the policy was to reduce costs and hire younger and differently skilled employees. Taylor brought a claim of unfair dismissal and another for breach of contract on the basis that his dismissal breached the equal opportunities policy, which he claimed had formed part of his contract of employment. While the employment tribunal dismissed the claim for unfair dismissal, it ruled that the equal opportunities policy was “incorporated into the applicant’s contract of employment” since it found that there was a practice in the prison service for prison officers to be notified of changes and additions to their contracts through circulars such as that used to disseminate the equality opportunities policy; the policy included a provision that employees would not be discriminated against because of their age; and there had been a breach of contract because the changed retirement policy was based on age.
The employment appeal tribunal allowed the prison service’s appeal on the basis that “effecting of a retirement age policy entirely depends on age, it could not reasonably have been intended by either party to the contract that implementation of that policy on that basis alone should be capable of being described as discriminatory”. The Court of Session upheld the appeal tribunal’s finding that the decision to retire Taylor did not constitute age discrimination since “the appellant’s contract gave the secretary of state a wide discretion to decide when persons who had passed the minimum retirement age should retire before reaching . . . 60, and that this discretion could not have been intended by the parties to be fettered by considerations of age”.
During the appeal at the House of Lords, Lord Hope of Craighead referred to the employment tribunal’s finding that there was a practice in the prison service for prison officers to be notified of changes and additions to their contracts through circulars and stated, “it is reasonable to assume that the background to this practice was that changes and additions were negotiated on the prison officers’ behalf by their trade union representatives who conducted with the employer a process of collective bargaining. In the result the contractual status of equal opportunities policy is not now in dispute”. The House of Lords then went on to uphold the decision of the Court of Session.
In articulating the ruling, Lord Hope stated, “it is clear that the introduction of the equal opportunities policy cannot have been intended to remove the employer’s right to terminate the contract of employment when staff reached the minimum retirement age . . . the same conclusion must follow as to the employer’s discretion regarding retention beyond the minimum retirement age . . . . There is no indication that the appellant was singled out because of his age for different treatment when he reached the minimum retirement age from that which was applicable to all other members of staff on reaching that age . . . there is no doubt that those who were over 55 were being targetted as a means of minimising or avoiding the application of the process of compulsory redundancy to those who had not yet reached that age. But . . . it was in the discretion of the employer to review the retention of those who had been retained after reaching the minimum retirement age and to effect their retirement, subject to notice, at any time. Furthermore, the provision in the circular of September 30, 1994 about the early retirement of staff over 55 who were not disestablished applied to all staff within that category regardless of their age”.
This case reflects that in an environment characterised by increasing demands for fair and non-discriminatory treatment, there can be an interesting interplay between labour management policies, collective bargaining, contracts of employment and issues surrounding age. Therefore, employers should ensure careful assessment of the policies that are being considered and/or negotiated before they are implemented.