IN LAST WEEK’S article I started to list the reasons identified by the Employment Rights Act 2012 as automatically unfair reasons for dismissal, and therefore a contravention of the employee’s right not to be unfairly dismissed.
Apart from those reasons, an employee is unfairly dismissed if the reason for the dismissal is:
Section 30 (c)“vii) that the employee is or was a disabled person, whether or not the disability resulted from an occupational disease or a work-related accident, in circumstances where the employer could reasonably have been expected to offer the employee alternative employee;
viii) that the employee was absent from work as a result of the performance of a national duty;
ix) that the employee refused to carry out an unlawful instruction given him by the employer;
x) in the case of a female employee, her pregnancy or a reason connected with her pregnancy, in contravention of her rights under the Employment of Women (Maternity Leave) Act; or
xi) a reason that relates to
(A) the race, colour, gender, age, marital status, religion, political opinion or affiliation, national extraction, social origin or indigenous origin of the employee; or
(B) the responsibility of the employee for the care and welfare of a child or a dependent family member with a disability under the immediate control of the employee, being a responsibility associate with an emergency affecting the child or dependent family member with the disability.”
The act gives a broad definition of national duty which includes:
• performance by the employee of jury duty or any other duty imposed by law;
• selection or endorsement of the employee by a relevant locally recognized organization to participate in a sporting event or an event of a voluntary or non-profit organization to which the employee belongs such as the Barbados Boy Scouts Association or Girl Guides Association or other similar organization;
• performance of service by an employee where he is a member of the Barbados Defence Force Reserve or the Barbados Cadet Corps and has been called out for such service pursuant to the Defence Act; and
• participation by the employee in a voluntary emergency management activity where all the following apply:
(i) the activity dealt with an emergency or natural disaster;
(ii) the employee engages in such activity on a voluntary basis;
(iii) the employee is a member of, or has a member-like association with, a recognized emergency management organization such as a District Emergency Organisation; and
(iv) the organization requested the employee to engage in the activity, or it would have been reasonable to expect that such a request would have been made had the circumstances permitted.
The act does not contain a definition of a disabled person. However, there is a definition of “disability” in Section 2 of the act which provides as follows:
“Disability, in relation to an individual, means a physical or mental impairment of the individual that has a substantial and long-term adverse effect on his ability to carry on normal day-to-day activities.”
Despite the above provisions, it is obvious that in appropriate cases the tribunal will have to determine whether a person is a disabled person within the meaning of the legislation. The provisions relating to discrimination are overdue.
In Barbados in respect of discrimination we are governed principally by the common law which upholds freedom of contract. Therefore, an employer can, in normal circumstances, employ whomsoever he pleases for whatever reason he chooses.
In relation to termination, the act now deems a dismissal to be unfair if the reason for dismissal relates to race, colour, gender, religion or any of the modes of discrimination mentioned in the act.
There are some interesting cases decided in England based on their various pieces of anti-discrimination legislation that may be useful if such matters come before the tribunal. However, the topic of discrimination will be left for a future article.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected].