Employment 2026 Comparisons

The law does not distinguish between blue-collar and white-collar employees. It does, however, distinguish employees who benefit from the rights and protections afforded by Bermuda employment law from certain categories of workers/employees who are largely excluded from such rights and protections, as well as from those who work as an independent contractor.

Employees

The Employment Act 2000 (EA2000), which is the primary piece of legislation governing employee rights and protections in Bermuda, defines an employee as “any person who is employed wholly or mainly in Bermuda for remuneration under a contract of employment” or “any other person who performs services wholly or mainly in Bermuda for another person for remuneration on such terms and conditions that his relationship with that person more closely resembles that of an employee than an independent contractor”.

Notably, however, the EA2000 expressly excludes certain categories from the definition of “employee”, namely casual workers, temporary employees (ie, those who are employed for no more three months in any year), students (depending on the terms of their engagement), voluntary workers, and part-time employees (ie, those who are employed for less than 15 hours per week).

The rights and protections afforded by the EA2000 do not therefore generally extend to those excluded categories, although they do fall within the scope of other statutory protections, including the Trade Union and Labour Relations (Consolidation) Act 2021 (see 6.1 Unions).

Independent Contractors

Genuine independent contractors are not entitled to any statutory employment protections.

Whether an individual is an employee or an independent contractor is determined by taking into account all aspects of how the working arrangement operates in practice, rather than simply the label applied by the parties or the contractual terms in place. This largely follows how the English courts have determined such issues, although the Ministry of Economy and Labour has produced guidance on the factors to be considered in such an assessment.

The government guidance identifies 12 key factors to consider when determining whether an individual is an employee or independent contractor, namely: continuity of work; tools and equipment; integration; method of payment; training; profit and loss; contract type; control over work; open market competition; benefit responsibility; business registration; and termination.

The EA2000 requires an employer to provide each employee with a written statement of employment (an employment contract by another name) which contains certain prescribed particulars. This statement must be given to the employee no later than one week after the start of employment.

This requirement extends to those categories of individuals who are otherwise excluded from the scope of the EA2000 (see 1.1 Employee Status), eg, students and casual, part-time and temporary workers, albeit the statement of employment for such individuals can be modified to reflect that they do not benefit from all statutory rights.

The particulars that must be included within the written statement of employment include (although some of these can be provided in a separate document such as an employee handbook or collective agreement):

• the full names of the employer and employee;
• the employment start date;
• the job title and a brief description of the work;
• the place of work;
• the gross wage or the method of calculating it, and the intervals at which it is to be paid;
• the normal days and hours of employment or, where the job involves shift work, the normal pattern of the shifts;
• the entitlement to holidays, including public holidays, and paid vacation leave;
• the entitlement to rest days and meal breaks;
• the entitlement to overtime pay or hours in lieu and the rate of overtime pay or the method of calculating it;
• the terms relating to incapacity due to sickness or injury;
• the length of notice which the employee and employer are obliged to give to terminate the employment;
• details of any pension provided;
• any applicable disciplinary and grievance procedures;
• where the employment is not expected to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date on which it is to end;
• any probationary period;
• any dress code;
• the existence of any relevant collective agreement;
• where the employment is pursuant to a work permit, the date of issue and expiry of that work permit, any employment-related conditions and any immigration restrictions set out in the work permit;
• the existence of the employer’s written policy against bullying and sexual harassment in the workplace and how the policy can be accessed – see 8.2 Anti-Discrimination; and
• where required, the existence of the employer’s written policy in relation to the management and distribution of employee tips and other gratuities within the workplace.

A failure to provide a written statement of employment as required by the EA2000 can lead to the employer being issued a civil penalty.

In practice, the employment contract will usually contain additional terms beyond those required by statute, particularly for more senior employees. For example, contracts may also include provisions relating to key duties, confidential information, garden leave, restrictive covenants, etc. Employment contracts can be indefinite (but subject to a notice period) or for a fixed-term duration.

Where an employee requires immigration approval to work in Bermuda (see 4. Foreign Workers), the contract should state that the employment is conditional upon the grant of a work permit.

Working Hours

Bermuda law does not impose any maximum limit on the number of hours that an employee can work each day or week (other than in relation to certain public sector employees). The law does, however, specify that all employees must have at least 30 minutes’ rest break for each period of five consecutive working hours and a rest period of at least 24 consecutive hours each week.

Flexible Working

There is no flexible working regime in Bermuda law. Accordingly, any flexible working arrangements are agreed between the employer and the employee, or governed by any specific policy that the employer may operate.

Part-Time Employees

There is no specific protection for part-time employees under the employment law framework in Bermuda. In fact, as detailed in 1.1 Employee Status, part-time employees who are employed for less than 15 hours per week do not receive the same statutory rights and protections as other employees. However, employers are required to give a written statement of employment to all part-time employees, irrespective of the number of hours worked – see 1.2 Employment Contracts.

Overtime

Under the EA2000, any hours worked (with authorisation) in excess of 40 hours per week are considered overtime and should be paid at an overtime rate of 1½ times the normal rate of pay (or at the normal rate with time off in lieu) – unless (i) the employee is a professional or managerial employee whose contract indicates that their salary has been calculated to reflect that they will likely be required to work more than 40 hours a week on occasion; or (ii) it has been agreed in writing with the employee (eg, in the employment contract) that the overtime rate does not apply.

Employees in Bermuda are entitled to be paid at least the statutory minimum hourly wage – which is currently BMD17.13 per hour (with effect from 1 September 2025).

“Employees” for these purposes has a wider meaning than the limited EA2000 definition (see 1.1 Employee Status) and includes casual, part-time and temporary workers. However, certain categories are expressly excluded from the minimum wage rules, including those under the age of 18, casual workers who pack groceries and those who are immediate family members of the owner of the business.

The minimum wage for students is 70% of the full statutory minimum (so currently BMD11.99 per hour). For these purposes, a student is defined as a person in full-time education who is employed on a Saturday or a public holiday or a period of vacation, including a half-term holiday. As a result, anyone in full-time education whose employment extends beyond these specified periods is not a “student” for these purposes and will be entitled to the full minimum hourly wage rate.

An employee must be paid at least the relevant minimum wage in any given pay reference period. Records should be kept by employers to show that they have complied with the minimum wage requirements. Any employer who does not comply may attract a fine and/or public censure, as well as be required to pay the arrears owed.

If an employee receives payment in the form of gratuities, service charges or commissions, their employer is entitled to count such payments received towards the minimum hourly rate (although any tips voluntarily given to an employee will not count). If the employee’s basic wage together with the gratuities received does not amount to the minimum rate during the relevant pay reference period, then the employer is responsible for making up the difference.

The EA2000 also sets out specific rules on how tips and other gratuities should be dealt with by an employer (for those in the hospitality industry, for example).

There are no other statutory or legally required rates of pay in Bermuda, save in respect of overtime and working on public holidays (see 1.3 Working Hours and 1.5 Other Employment Terms).

Under the EA2000, an employer is required to give each employee a written itemised pay statement, which contains certain particulars, at or before the payment of any wages.

An employer is not permitted to make deductions from an employee’s wages unless the deduction is required by statute or a court order, or authorised via a collective agreement or the employment contract, or where the employee has given their prior written consent.

Vacation Leave

Under the EA2000, employees in Bermuda are entitled to two weeks’ paid vacation leave each year (not including public holidays – see below) once they have completed one year of employment. However, after six months’ employment, the employee is entitled to one week’s vacation leave, which is deducted from the two weeks’ entitlement which accrues after the first completed year. The EA2000 does not provide for the carry-over of unused vacation leave in any given year.

In practice, many employers provide employees with paid vacation leave which exceeds the statutory minimum entitlement.

Notably, the EA2000 also provides that an employee is entitled to be paid their wages for the vacation in advance of the leave being taken, where requested by the employee and “where practicable”.

Public Holidays

The EA2000 sets down rules regarding employees working on, and being paid for, public holidays.

These rules – which apply unless the employee and employer otherwise agree in writing (eg, in the employment contract) – provide that an employee is entitled to a paid day off on each public holiday, save that:

• if the employee is required to work on the public holiday, they should be paid at a rate of 1½ times their normal rate of pay, or at their normal rate with a paid day off in lieu;
• if a public holiday falls on an employee’s rest day, they should be given a paid holiday on the working day immediately following the public holiday or on such other day as may be agreed by the employer and employee; and
• an employee is not entitled to be paid in respect of a public holiday if they do not work on their working days immediately preceding and immediately following the public holiday (unless on annual leave or sick leave).

Sick Leave

Under the EA2000, employees who have completed at least one year of continuous employment are entitled to eight days’ sick pay each year (when they are unable to work due to sickness or injury). However, an employee is not entitled to be paid for a period of two or more consecutive days off unless, where requested by the employer, they provide a medical certificate which confirms that they are unable to work due to sickness or injury.

In practice, an employer may provide employees with sick pay entitlement which exceeds the statutory minimum position.

Maternity and Other Family Leave

Bermuda law provides for 13 weeks’ statutory maternity leave. An employee is eligible for maternity leave if she (i) provides her employer with a medical certificate confirming that she is pregnant and the estimated date of birth; and (ii) makes an application to her employer for maternity leave at least four weeks before she intends to commence her leave.

For employees who have completed at least one year’s continuous employment (or will have done so by the expected date of birth), the 13 weeks’ statutory leave is paid (at the employee’s usual salary/wage), whereas it is otherwise unpaid leave.

Notable rules apply in relation to an employee returning from maternity leave. Specifically, an employee on maternity leave is required to give her employer at least two weeks’ advance notice of the date she intends to resume work – and an employee who fails to provide such notification shall be taken to have terminated her employment. It is not clear in practice, however, how frequently employers seek to rely on this deemed termination provision.

Pregnant employees also have the right to paid time off for antenatal care under the EA2000.

Bermuda law provides for five consecutive days’ paternity leave. An employee is eligible for paternity leave if he (i) is the father of the child; (ii) provides his employer with a medical certificate confirming that the child’s mother is pregnant and the estimated date of birth; and (iii) makes an application to his employer for paternity leave at least four weeks before he intends to commence his leave.

For employees who have completed at least one year’s continuous employment (or will have done so by the expected date of birth), the five consecutive days’ statutory leave is paid (at the employee’s usual salary/wage), whereas it is otherwise unpaid leave.

Bermuda has recently introduced new statutory entitlements for employees who care for children by way of adoption or legal guardianship – where the child is under the age of two years at the date of the court order for adoption/legal guardianship (known as “parental leave”). These entitlements broadly mirror the maternity and paternity leave framework outlined above, namely 13 weeks’ leave for the mother (as named in the court order) and five consecutive days’ leave for the father (as named in the court order). The eligibility criteria and entitlement to paid leave are also similar to the maternity and paternity statutory rules.

Confidentiality

Employees owe an implied duty of confidentiality during and after their employment in relation to an employer’s trade secrets. However, it is common for wider confidentiality obligations to be included within the employment contract (and, if relevant, any separation agreement upon the termination of employment). There are limitations on the scope and enforceability of such confidentiality obligations; for example, a confidentiality clause will be void insofar it attempts to prevent an employee from making a protected disclosure.

Post-termination restrictions, such as non-compete clauses, have received limited review by the Bermuda courts; however, the law in this area generally follows English common law.

Non-compete clauses will only be enforceable to the extent that the former employer can demonstrate that the restriction goes no further than reasonably necessary to protect a legitimate business interest (such as trade connections, trade secrets, etc). Generally speaking, non-compete restrictions are likely to be more difficult to enforce than other restrictive covenants, such as non-solicitation or non-dealing restrictions, on the basis that it limits an individual’s freedom to work.

It is therefore important that the scope and duration of a non-compete clause is reasonable by reference to the specific employee’s role and seniority, taking into account their access to confidential information and important business relationships and the potential damage that they could cause to the former employer’s business. Non-compete restrictions which are unreasonably wide in duration, geographical extent and/or scope of the prohibited activity will typically not be upheld.

There is no obligation under Bermuda law for the former employer to make any ongoing payment to a former employee, for example for the restricted period, in order to enforce a non-compete restriction.

As with any non-compete restriction, a non-solicitation restriction – whether by reference to the solicitation of clients and/or employees – will only be enforceable if it goes no further than is reasonably necessary to protect a legitimate business interest of the former employer. As such, the scope and duration of any non-solicitation clauses should be carefully and clearly drafted – in the same way as any non-compete restriction (see 2.1 Non-Competes).

Typically, the scope of such restrictions should be limited to the non-solicitation of those clients and/or employees that the departing employee had material contact or dealings with during a specified period prior to the termination of their employment in order to increase the likelihood that it would be upheld by a court.

Employers have obligations to employees under the Personal Information Protection Act 2016 (PIPA), which governs how organisations in Bermuda must use and process personal information (personal data). “Personal information” is defined under PIPA as “any information about an identified or identifiable individual”.

In broad terms, PIPA requires employers to ensure that the personal information they possess of their employees is:

• kept securely, up to date and only for as long as is necessary;
• used fairly, lawfully and only for the specific purposes for which it is collected; and
• adequate, relevant and not excessive in relation to the purpose for which it is used.

PIPA sets out the conditions of which at least one must be satisfied in order for an organisation to use an individual's personal information (“use” is given a very wide definition for these purposes). One of these conditions, amongst many others, is where the individual has knowingly consented to the use of their personal information.

As a result, employment contracts in Bermuda will typically provide that an employee grants their consent to the use of their personal information for employment purposes – although the Privacy Commissioner does make clear that employers need to take extra care to show that consent is freely given. Alternatively, an employer is likely to be able to rely on other permitted conditions in the vast majority of circumstances in the employment context.

Similar to other jurisdictions, there are more enhanced data privacy protections for sensitive personal information. For these purposes, “sensitive personal information” means any personal information relating to an individual’s place of origin, race, colour, national or ethnic origin, sex, sexual orientation, sexual life, marital status, physical or mental disability, physical or mental health, family status, religious beliefs, political opinions, trade union membership, biometric information or genetic information.

Under PIPA, employers are, subject to limited exceptions, required to provide employees with a privacy notice about their practices and policies with respect to personal information, including the purposes for which personal information is or might be used, the identity and types of individuals/organisations to whom personal information might be disclosed, and the means that the employer provides for an employee to limit the use of, and access, rectify, block, erase or destroy, their personal information.

Also, individuals have the right to request access to the personal information that is held or under the control of the organisation, together with details of the purposes for which the personal information has been and is being used, the names of the persons or types of persons to whom, and the circumstances in which, the personal information has been disclosed (a “PIPA Rights Request”). An organisation has 45 days in which to respond to a PIPA Rights Request, albeit it may extend this time period by a further 30 days in certain circumstances. There are specified grounds on which an organisation is not required to provide such access.

The Office of the Privacy Commissioner for Bermuda is responsible for monitoring the processing of personal information by organisations. Employees can make a complaint to the Privacy Commissioner about the way in which their employer has handled their personal information (provided they have first complained directly to their employer), and the Privacy Commissioner will investigate and can take various enforcement steps.

In addition, an employee can issue a statutory claim if they believe that their employer has failed to comply with any of their obligations under PIPA. If they are successful, the court will award compensation for financial loss or distress caused by an employer failing to comply with its privacy obligations.

Anyone who is not a Bermudian (as described in the Bermuda Constitution), a spouse, widow or widower of a Bermudian, a Belonger (ie, a naturalised British Overseas Territories citizen deemed to belong to Bermuda), a spouse or a dependant (under the age of 18) of a Belonger, or a holder of a Permanent Resident’s Certificate (PRC), must obtain specific immigration approval – namely, a work permit issued by the Department of Immigration – to engage in gainful occupation in Bermuda.

Expatriate workers make up a sizeable portion of employees working in Bermuda and therefore the requirements with regard to work permits are a critical part of the employment framework.

The work permit rules require the employer to apply and obtain the work permit on behalf of the employee. The work permit granted is only valid for that specific role with that specific employer.

In order to obtain a work permit for a particular employee, the employer must usually demonstrate that no suitably qualified Bermudian/Belonger (or spouse) or PRC holder was available to perform the role. Accordingly, many work permit categories require employers to first advertise the vacant role, and employers are obliged to interview any applicants who are Bermudian/a Belonger (or spouse) or a PRC holder and meet the minimum qualifications and experience requirements.

There are various types of work permits used by the Department of Immigration, including some specific to certain industries such as fintech and family offices, as well as for exempted companies that are setting up business in Bermuda.

Subject to certain exceptions, employees working under a work permit are not normally permitted to change employers in Bermuda during the first two years with their first employer.

If a former employee is due to leave the island following the termination of their employment (which they are generally obliged to do unless they obtain further immigration permission to reside and/or work), the former employer is legally obliged to pay for the cost of their airfare in repatriating them to their home country, unless otherwise agreed with the employee.

Failure by an employer or an employee to abide by relevant immigration rules (for example, where an individual works without, or outside the scope of, a work permit) is usually taken very seriously by the Department of Immigration. In such circumstances, the authorities may impose civil penalties on the employer and/or the employee (eg, of up to BMD10,000), implement restrictions on future employment (eg, in terms of future work permit approvals) and/or direct the individual to leave Bermuda.

There are no specific statutory regulations on mobile or remote work. However, it is not uncommon for Bermuda-based employers to have employees who perform their role from overseas (whether on a temporary or permanent basis), although some industry regulations and/or tax benefits in Bermuda require employees to be based on the island.

Data Protection

Employers should ensure that data privacy considerations are taken into account in relation to any employees who work remotely outside of Bermuda. For example, such employees will continue to have obligations with regard to confidentiality and data protection.

Employers should therefore carry out a risk assessment of the implications of employees working remotely to consider issues such as how to ensure the security of any personal information (and sensitive commercial information) handled by the employee and how the employee should securely access company systems.

Occupational Health and Safety

Employers in Bermuda are under a statutory duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees. Depending on the circumstances, this duty is likely to extend to remote working arrangements, and employers should assess health and safety risks accordingly.

Social Security

Where an employee of a Bermuda-based employer is working overseas (ie, outside of Bermuda), the employer should consider whether any tax and/or social security obligations may arise in that overseas jurisdiction, including whether the employee’s remote working risks creating a permanent establishment of the employer for tax purposes in that jurisdiction – as well as ensuring that any local Bermuda obligations in respect of payroll tax and social insurance contributions are understood and satisfied.

There is no specific legal framework in Bermuda relating to sabbaticals. Employers tend to operate their own sabbatical policy or might otherwise grant sabbatical leave on a case-by-case basis. The terms of any sabbatical leave are down to the individual employer or subject to negotiation with the employee, albeit the employer should, naturally, ensure that any sabbatical policy it has in place is fair and non-discriminatory.

Hybrid working (where employees work partly from the office and partly from home or another location) is not uncommon in Bermuda, although perhaps not as widespread as in other jurisdictions, likely due to the small size of the island.

It is also not all that uncommon that employers in Bermuda, particularly new employers such as start-ups or those that are just setting up on the island, may engage fractional employees in certain roles, eg, an individual who works part-time for a number of different employers, usually in a specialised role.

The Trade Union and Labour Relations (Consolidation) Act 2021 (TULRA) is the primary statute governing the formation, governance and membership of trade unions in Bermuda. It provides, broadly, that all employees have the right to join or refuse to join a trade union. “Employee” is given a wider meaning for these purposes than the limited EA2000 definition – see 1.1 Employee Status.

There is a statutory procedure for the certification of trade unions whereby employees may create or have a trade union recognised by their employer. Certification can be achieved by a ballot of the workforce or automatically by agreement between the employer and the union (provided that relevant thresholds of support amongst workers in the bargaining unit are satisfied). Employers must deal with unions who have obtained certification in good faith for the purposes of collective bargaining.

Trade unions have broad-ranging powers and may conduct ballots of their members, instigate labour disputes or intervene in them (including organising strike action and/or peaceful picketing in accordance with the rules of TULRA), report disputes to the Labour Relations Office and negotiate collective bargaining agreements (see 6.3 Collective Bargaining Agreements).

All trade unions must be registered under TULRA (the Registrar-General maintains a register of all such trade unions).

Bermuda does not have any other statutory systems or structures for work councils, employee forums or employee representative bodies. Employee representation is primarily achieved through trade unions that obtain certification as the exclusive bargaining agent for a defined bargaining unit – see 6.1 Unions.

TULRA defines a collective bargaining agreement (CBA) as “an agreement in writing entered into between an employer or an employer’s trade union and a bargaining agent containing provisions respecting terms and conditions of employment and related matters”. A CBA will usually cover matters such as pay, disciplinary procedures, working hours and other terms of employment.

Whilst collective bargaining agreements are recognised under Bermuda law, subject to some exceptions, TULRA provides that the courts have no jurisdiction to entertain proceedings seeking either to enforce such agreements directly or to recover damages for their breach. Collective bargaining disputes are instead generally addressed through the statutory labour relations framework, rather than ordinary contractual enforcement proceedings.

From a statutory perspective, employers may only dismiss an employee for a valid reason relating to the ability, performance or conduct of the employee or the operational requirements of the business – other than in cases where a fixed-term contract has expired or where a project for which the employee was employed has been completed.

Conduct and Performance Dismissals

Other than in the case of serious misconduct (see 7.3 Dismissal for (Serious) Cause), statute requires employers to first give an employee a written warning prior to any dismissal for misconduct. If the employee is guilty of two separate instances of misconduct within a six-month period, or four separate instances within a 12-month period (and has received written warnings in respect of the previous instances), the employee may, from a statutory perspective, be dismissed without notice – although the employer would need to consider whether the contract provides for a more favourable notice entitlement in such circumstances. Also, under the relevant statutory provisions, the employer will be deemed to have waived its right to dismiss if it does not do so within 14 days of having knowledge of the final act of misconduct.

Similarly, in the case of a performance dismissal, employers are required to first give a written warning to an employee. Specifically, if the employee does not demonstrate improvement in their performance within six months of the written warning, they may, from a statutory perspective, be dismissed without notice – although, again, the employer would need to consider whether the contract provides for a more favourable notice entitlement in such circumstances. Again, the employer will be deemed to have waived its right to dismiss if it does not do so within 14 days of the end of the six-month period.

In addition to the statutory requirements to give written warnings, employers are also expected to undertake a “fair” procedure. Such procedure will, inevitably, depend to an extent on the particular scenario and type of dismissal, but by way of example, in the case of a misconduct dismissal, the employer would be expected to conduct a reasonable investigation, to make the employee aware of the allegations against them and provide an opportunity at a disciplinary hearing to respond to those allegations, etc.

Redundancy Dismissals

A valid redundancy exists under Bermuda law where the termination of employment forms part of a reduction in the workforce as a direct result of a “condition of redundancy”. The “conditions of redundancy” include the discontinuance of all or part of the business; the reorganisation of the business; and where the reduction in business has been necessitated by economic conditions, contraction in the volume of work or reduced demand.

Prior to making an employee redundant, the EA2000 requires the employer, at least 14 days before giving notice of termination, to (a) inform the affected employee(s) (and any relevant trade union/other representative) of certain information relating to the redundancy; and (b) consult with the affected employee(s) (and any relevant trade union/other representative) about the redundancy.

There are no specific legal requirements for large-scale or collective redundancies in Bermuda (other than the normal requirements outlined above), although employers are encouraged to notify the Department of Labour of situations involving ten or more redundancies.

Employees with at least one year’s complete service and whose employment is terminated due to redundancy (or otherwise due to the employee’s death from occupational disease or accident or due to the employer’s winding up or insolvency or death) are entitled to be paid a statutory severance allowance. This severance allowance is calculated as two weeks’ wages for each complete year of continuous employment up to the first ten years, and three weeks’ wages for each complete year thereafter, subject to a maximum of 32 weeks’ wages. However, a severance allowance is not payable in certain circumstances, including where the employee unreasonably refuses an offer of re-employment.

Probationary Period Dismissals

Under specific EA2000 rules relating to probationary periods, an employer may dismiss an employee without notice during a probationary period for any reason relating to the employee’s performance review, performance or conduct or the operational requirements of the business. Employers would still, however, be generally expected to undertake a fair process prior to any such dismissal, including undertaking a performance review during the probationary period in line with statutory requirements.

Unlawful Grounds for Dismissal

In addition to the requirement for a valid reason for dismissal (as detailed above), the EA2000 identifies certain reasons for dismissal which will automatically be considered to be legally unfair. These include dismissal on the grounds of certain protected characteristics, or an employee’s trade union activity, or the making of a protected disclosure, or due to an employee’s temporary absence from work due to sickness or injury (unless frequent and in excess of their leave entitlement).

Unfair Dismissal

If the employer terminates on grounds which are prescribed to be unlawful (as above) or does not have a valid reason for the dismissal or does not follow the applicable statutory procedure, it will be considered to be an unfair dismissal. Similarly, if an employer does not carry out a fair dismissal process, it runs the risk of a finding of an unfair dismissal.

The potential remedies that can be awarded by the Employment and Labour Relations Tribunal upon a successful claim of unfair dismissal are reinstatement, re-engagement and/or, most commonly, compensation – which is capped at 26 weeks’ wages.

The statutory protections relating to the termination of employment apply only to “employees” as defined within the EA2000 – see 1.1 Employee Status.

The EA2000 provides that the statutory notice required to terminate an employment relationship (whether by the employer or the employee) is one week’s notice if the employee is paid weekly; two weeks’ notice if they are paid every two weeks; and in all other cases, one month’s notice.

However, this statutory notice period does not apply where:

• the employer is entitled to dismiss the employee for serious misconduct – see 7.3 Dismissal for (Serious) Cause);
• the employer dismisses the employee for repeated misconduct or poor performance in accordance with the relevant statutory procedure – see 7.1 Grounds for Termination;
• the employee is in a probationary period – see 7.1 Grounds for Termination;
• the employee has reached a specified retirement age (although note that, subject to the specific circumstances, this may give rise to a risk of unfair dismissal);
• a different notice period is included in the employment contract or a collective agreement or has otherwise been agreed between employer and employee; or
• the giving of longer notice periods is customary given the nature and functions of the work performed by the employee.

In practice, the applicable notice period will usually be specified within the employment contract.

An employer is not lawfully permitted to give notice of termination whilst an employee is absent on vacation leave, maternity, paternity, parental or bereavement leave or sick leave (unless the sick leave has extended beyond six weeks).

As an alternative to requiring an employee to serve their notice period, an employer can make a payment in lieu of notice. Under statute, this must be a sum equal to the salary and other remuneration which the employee would have received in the notice period, and the employer must also provide the employee with the benefits they would have received during the notice period.

There is no entitlement to any severance pay, other than in those scenarios (including redundancy) where employees may have a right to a statutory severance allowance – see 7.1 Grounds for Termination.

The EA2000 provides that an employer is entitled to dismiss an employee without notice (and without notice pay) in the event the employee is guilty of serious misconduct which (a) is directly related to the employment relationship; or (b) has a detrimental effect on the employer’s business, such (in either case) that it would be unreasonable to expect the employer to continue the employment relationship.

As for all other cases of dismissal (see 7.1 Grounds for Termination), employers would be expected to undertake a fair dismissal procedure, in particular to be able to evidence that there is a reasonable basis for concluding that the employee was guilty of the serious misconduct. This will usually require an investigation and giving the employee the opportunity to respond properly to the relevant allegations.

The EA2000 also provides that an employer may summarily dismiss for repeated misconduct (which does not amount to serious misconduct) or poor performance provided it complies with the relevant statutory procedure – see 7.1 Grounds for Termination.

Separate to the above statutory grounds for summary dismissal, the employment contract may often specify the grounds on which the employer may be contractually entitled to dismiss an employee without notice or notice pay. For more senior employees, these contractual grounds are typically more comprehensive than the statutory position.

Strictly speaking, the EA2000 prohibits the contracting out of its statutory requirements. However, termination agreements, under which an employee will waive any employment-related legal claims against the employer typically in exchange for some form of severance/compensation payment, are commonly used in Bermuda – usually known as “separation agreements”.

There are no statutory requirements as to the form or content of a separation agreement – although a separation agreement cannot lawfully prevent an employee from making a protected disclosure. An employee is not required to take legal advice prior to signing such an agreement, although many typically do. Separation agreements are subject to normal rules regarding contracts.

Separately, an employee has the statutory right to request that their employer provide them with a “certificate of termination” upon the termination of their employment. The certificate must contain the name and address of the employer, the nature of the employer’s business, the period of employment, the employee’s job role, the wages and other remuneration payable as at termination and, where the employee requests, the reason for the termination.

The statutory protections relating to the termination of employment apply only to “employees” as defined within the EA2000 – see 1.1 Employee Status. Such protections include:

• protection from dismissal or disciplinary action on certain specified grounds, including (but by no means limited to) certain protected characteristics and an employee’s trade union activity. Any dismissal of an employee on any of the specified grounds will be an unfair dismissal – see 7.1 Grounds for Termination; and
• an employee cannot be given notice of termination if they are absent on vacation leave, maternity, paternity, parental or bereavement leave or sick leave (unless the sick leave has extended beyond six weeks) – see 7.2 Notice Periods.

Employee representatives do not enjoy any special protection against dismissal under Bermuda employment law, save that, as above, an unfair dismissal will occur if an employee is dismissed because of their trade union activity.

The Human Rights Act 1981 provides employees with protection from unlawful discrimination – see 8.2 Anti-Discrimination.

A common-law wrongful dismissal occurs where the employer terminates the employment relationship in breach of contract, eg, dismissing the employee with inadequate notice or no notice at all (such as where the employee is dismissed for serious misconduct but the misconduct was either not proven or was not sufficiently serious enough to warrant summary dismissal).

The limitation period to pursue a wrongful dismissal claim in the Supreme Court is six years. In the event of a successful claim, damages are generally limited to the losses flowing from the breach of contract. In theory, an employee may also seek an injunction, although damages will likely be an adequate remedy in most cases.

In addition, a wrongful dismissal by an employer will typically affect the enforceability of post-termination obligations, including restrictive covenants.

Separately, employees have statutory protection from being unfairly dismissed under the EA2000 – see 7.1 Grounds for Termination.

In addition to the unfair dismissal protections contained in the EA2000, which protects employees from disciplinary action or dismissal on certain discriminatory grounds (see 7.1 Grounds for Termination), the Human Rights Act 1981 (HRA1981) prohibits discrimination on the basis of the following protected characteristics:

• race, place of origin, colour, or ethnic or national origins;
• sex (which includes the fact that a woman is or may be pregnant) or sexual orientation;
• marital status or domestic partnership status;
• disability;
• family status;
• religion or beliefs or political opinions; and
• criminal record (except where there are valid reasons relevant to the nature of the offence that would justify a difference in treatment).

The HRA1981 provides for a broad prohibition of discrimination in the employment context, including (amongst other specific protections) making it unlawful:

• for an employer to treat an employee less favourably than it treats (or would treat) another employee on the basis of a protected characteristic;
• for an employer to discriminate against a job applicant or employee on the basis of a protected characteristic by refusing to employ, train or promote them;
• for an employer to pay one employee less than another for substantially the same work on the basis of a protected characteristic;
• for an employer, its agent or another employee to harass an employee in the workplace on the basis of a protected characteristic; and

• for an employer, its agent or another employee to sexually harass an employee in the workplace.

Certain exceptions to the above prohibitions are provided for in the HRA1981. In particular, employers are permitted to give preference to hiring Bermudians.

In situations where a disabled person might otherwise be considered to be disqualified from employment because of their disability, employers are required under the HRA1981 to modify the circumstances of the employment so as to eliminate the effect of the disability – provided it does not cause “unreasonable hardship” to the employer.

The HRA1981 also puts a positive obligation on employers to take such action as is reasonably necessary to ensure that sexual harassment in the workplace does not occur. Additionally, the EA2000 requires employers to implement a written policy statement against bullying and sexual harassment in the workplace and to give each employee a copy at the start of their employment.

An employee may make a complaint about alleged discrimination to the Human Rights Commission, which can elect to investigate the complaint and offer the parties mediation or conciliation. If a settlement between the parties is not reached or is unlikely to be reached, the Commission may then refer the matter to the Human Rights Tribunal to hear the complaint. If the complaint is successful, the most common remedy is the awarding of compensation for financial loss and injury to feelings caused by the discrimination.

Alternatively, an employee may bring a claim in the Supreme Court for breach of statutory duty as a claim in tort.

Employment disputes in Bermuda are primarily handled by the Employment and Labour Relations Tribunal. The relevant legislation gives the Tribunal broad procedural powers as to the conduct of proceedings and hearings, but it does not set out specific rules on digital hearings or video proceedings. As such, procedural matters (including how hearings are conducted) are generally left to the Tribunal’s discretion.

More broadly, courts in Bermuda (including those that might hear employment-related disputes on appeal or judicial review) do permit remote hearings, but this is governed by practice directions and judicial discretion, rather than a specific statutory regime. In practice, it is not uncommon for a party to attend a hearing remotely, via video, particularly if they are based overseas and/or for preliminary or case management hearings.

The Employment and Labour Relations Tribunal has jurisdiction to consider the range of statutory employment claims, including unfair dismissal and other alleged breaches of the EA2000.

In broad terms, prior to a matter reaching the Tribunal, the employee must first raise a written complaint to an inspector of the Department of Labour Relations within six months of the alleged statutory breach. The inspector will conduct an inquiry and attempt to conciliate between the parties. If the inspector is unable to facilitate a settlement between the parties and, based on their inquiry, has reasonable grounds to believe that the employer has failed to comply with the EA2000, they will refer the employee’s complaint to the Tribunal, which will hold a hearing on the matter.

Appeals against a decision or order of the Tribunal are made before the Supreme Court of Bermuda on points of law only.

An aggrieved employee can also pursue a contractual claim in the Supreme Court. Claims for a breach of (employment) contract are subject to a limitation period of six years.

In terms of class action complaints, the EA2000 provides that, where a group of employees with the same or substantially the same interests have a statutory complaint, one complaint can be made in a representative capacity. Similarly, a complaint may be made by a trade union or another representative group on behalf of an employee.

There is no specific class action regime in the other Bermuda courts. However, the collective redress mechanism most similar to this is the concept of “representative proceedings” under the Rules of the Supreme Court 1985. Under these rules, parties can bring an action on behalf of, or against, a group of people who have the same interest in the proceedings with leave of the court. The parties to be represented must also consent to the representation and to the consolidation of the proceedings.

The rules of representation in the Tribunal are not as strict as those of the other courts in Bermuda – as the Tribunal was established to hear employment and labour disputes and is intended to be more accessible than the courts. The EA2000 provides that any party to Tribunal proceedings may appear personally or may be represented “by counsel or otherwise”. It is not uncommon for employees to represent themselves in the Tribunal.

As mentioned in 9.1 Litigation, statutory complaints under the EA2000 are first subject to a mandatory conciliation process through the Department of Labour Relations. If a settlement cannot be achieved and the inspector has reasonable grounds to believe that the employer has failed to comply with the EA2000, the complaint is progressed to the Employment and Labour Relations Tribunal.

The Tribunal has broad jurisdiction to determine employment-related disputes, including by way of arbitration where appropriate. Collective agreements may also provide for labour disputes to be resolved through negotiation, conciliation or arbitration.

Private arbitration clauses are sometimes included in employment contracts, particularly for senior executives (where the confidential resolution of disputes is preferred). Such clauses may be effective in relation to contractual claims, subject to ordinary principles governing arbitration agreements. However, arguably, a private arbitration clause is not able to exclude the statutory complaint framework under the EA2000.

Unlike the civil courts where costs follow the event, the Employment and Labour Relations Tribunal generally does not have any cost-shifting jurisdiction. As such, parties bear their own costs irrespective of whether they succeed or not. Conversely, when considering an appeal against a Tribunal decision, the Supreme Court can make an order as to costs as it sees fit.