The main changes which occurred in Barbados employment law over the last year are as follows.
The Employment (Prevention of Discrimination) Act 2020 (the “Discrimination Act”) was enacted on 28 July 2020. Its key objective is to protect employees from discrimination. It contains a number of prohibitions in favour of employees, including a prohibition against an employer from requiring an employee to answer questions in relation to, or undergo a test for, a medical condition as a precondition to entering into a contract of employment or as a condition for the continuance of employment.
The Minimum Wage (National and Sectoral Minimum Wage) Order 2021, which came into effect on 1 April 2021, was established in order to:
The Domestic Employees (Rate of Pay and Hours of Duty) (Amendment) Order 2021, which came into effect on 1 April 2021, amends the rate of pay provided for in the Domestic Employees (Rate of Pay and Hours of Duty) Order 1982 by aligning the new rate of domestic employee pay with the new national minimum wage.
The main legislative and policy/sectoral guidance initiatives taken in order to effectively manage labour-related issues arising during the COVID-19 crisis are set out below.
The distinction between “blue-collar workers” and “white-collar workers” is not specifically addressed by law or regulation in Barbados.
Different Types of Employment Contracts
The following types of contracts are recognised within Barbados law:
Requirements for Employment Contracts
The Employment Rights Act 2012-9 (the ERA) provides that a contract of employment may be "express" or "implied". Further, where there is an express contract of employment, it may either be oral or in writing.
A contract of employment is legally required to be agreed in order to commence an employment relationship and is specifically defined in the ERA as a “contract of service or apprenticeship”. The First Schedule of the ERA also establishes a (non-exhaustive) list of factors for consideration in determining whether the relevant contract creates an employment relationship, as opposed to that of a contract for services provided by an independent contractor.
Where some or all of the following terms exist in the relevant contract, an employer-employee relationship will be deemed to exist:
Maximum Working Hours
In accordance with the Shops Act 2015-30 (the SA), the number of hours which can be required of an employee for work in any one (five-day) working week, excluding a one hour break for lunch each day, shall not exceed 40 hours. The daily requirement is stipulated to be no more than eight hours, excluding the lunch break, to run continuously from the employee’s start time to the conclusion of the working day.
Flexibility of Working Hours
Flexible arrangements may be possible, on agreement between employer and employee, in relation to the start time and end time of a particular working day. However, the required limitation of hours of work per week is maintained. Colloquially, this may be referred to as “flexitime”.
The ERA’s provisions apply to all employment contracts, including any part-time contract.
The SA explains overtime as the number of extended hours which a person undertakes, voluntarily, to be employed. The SA also stipulates the specific rate of pay for overtime work. Where a person works overtime, they are entitled to be paid time and one half their ordinary rate. It is essential to note that no person shall be required to work overtime without their consent.
In some cases, employers do not offer the option to work overtime and earn overtime pay. They may nevertheless stipulate in the employment contract that the employee may be required to work beyond the normal working hours set out in their contract, as a condition of their position, from time to time. The incidence of overtime practices tends to be higher in certain sectors depending on tradition, culture and also whether or not the relevant human capital is unionised.
Requirements for the Minimum Wage
Requirements for the minimum wage are set out in the Minimum Wage Act 2017-4 (the MWA) and the specific sums stipulated, from time to time, are set out in a Minimum Wage Order.
The MWA states that relevant employers shall not pay to any employee any sum which is less than the sum in a Minimum Wage Order. These employers also shall not withhold any sum, from an employee, other than an amount required for deduction in accordance with any enactment relevant to the MWA (eg, the Protection of Wages Act, Chapter 351).
Further, where an employer pays an employee an incentive-based payment, overtime payment, monetary allowance or any other additional sums, these payments shall not be discontinued, but shall, where terms and conditions of the employee’s employment contract and the duties performed require, continue to be paid in addition to the sum prescribed in the Minimum Wage Order.
Bonus and Incentive Payments
As a matter of practice, payments which are incentive-based and bonuses are given at the discretion of the employer, and provisions in connection with the same are usually included in the employee’s employment contract. There is no mandatory legislative or regulatory provision regulating this.
Vacation Leave and Vacation Pay
Requirements for vacation leave are set out in the Holidays with Pay Act 2017-3 (the HWPA). Under the HWPA, an employee is entitled to receive vacation once they have completed 12 months of employment with an employer. Thereafter, an employee is entitled, under the HWPA, to three weeks' vacation per year of employment, during the second, third and fourth years of employment. In respect of and subsequent to the fifth year of employment, an employee is then entitled to four weeks' vacation per year.
The HWPA states further that an employee may also be granted an annual holiday which is greater than the previously specified three and four-week periods. This greater period must either be:
In accordance with the HWPA, vacation pay shall be an employee’s average pay for that annual holiday. The HWPA proceeds to stipulate the calculation of average pay for persons employed for a range of time periods. However, employees whose annual holiday is determined by their employment contract, or an implied term, or longer than the minimum period specified in the HWPA, shall be paid in accordance with the following calculation: the number of weeks given for annual holiday/52 X the total remuneration of the employee within that year of employment.
The Employment of Women (Maternity Leave) Act, Chapter 345A states that every employee, in addition to her annual holiday, under the HWPA, is entitled to maternity leave.
In respect of illness and disability, the ERA states that the absence of an employee from work is not to be treated as an interruption of their continuity of employment, where their absence occurred for particular reasons, including:
Confidentiality, Morality and Termination
Employers are entitled to include certain provisions in respect of confidentiality and morality (non-disparagement) into employment contracts, and some employment contracts provide for the right of the employer to terminate the employee’s employment in these circumstances. While an employment contract may state that a breach of either of these provisions is grounds for disciplinary action, which may lead to termination, the ERA provides for various protections for employees not to be “unfairly dismissed”. There are well documented processes set out in the ERA in this regard.
The employee is therefore entitled to rely on the legislated dismissal processes being fully and carefully carried out by the employer in order to ensure fair dismissal. In the event that an employee believes that they may have been unfairly dismissed, they may, under the ERA, lay a complaint with the Chief Labour Officer (CLO), who is entitled to escalate that complaint to the Employment Rights Tribunal (ERT). An employer is therefore prohibited from terminating an employee prior to observing and properly following these processes.
The Fourth Schedule of the ERA sets out the above-mentioned processes for fair dismissal, which must be carried out, and those processes are further ventilated, in subsequent discussion. However, the ERA mandates, as the main stages of the dismissal process:
There is case law which is instructive for employers where employees breach the non-compete, non-solicitation and confidentiality clauses within their employment contracts (GasTOPS Ltd v Forsyth 2012 ONCA 134). The understanding is that an employee owes their employer an implied fiduciary duty of loyalty. This, in turn, creates an entitlement on the part of the employer, to the employee’s loyalty, whether or not the employment contract contains written clauses prohibiting the employee from engaging in or facilitating activities which:
The ultimate decision in GasTOPS established that the employee will be liable to damages to their former employer where an employee is found to have breached their fiduciary duty not to:
Further, where the new employer was found to be a device to aid an employee’s breach of their fiduciary duty “not to compete with their former employer”, the new employer may be ordered by the court to account for the consequential profits and to pay the same to the former employer.
Considerations for Specific Duration of Restriction under Non-compete Clauses
Employers are entitled to mandate certain time periods for restrictions under non-compete clauses, varying in length in different circumstances of employment. There is also case law which is instructive on this basis and there are some essential points to note. For instance, in Thomas v Farr plc and Hanover Park Commercial Limited CA, the employee was employed with an insurance broker in the social housing sector. Upon restructure of the company, the employee resigned and, among other things, sought a declaration that the non-compete clause in his contract was unreasonable and unenforceable. The High Court and the Court of Appeal both held that the 12-month non-compete restriction was reasonable and enforceable. It was taken into consideration that the employee was the managing director of the company and was therefore exposed to significant confidential information. It was further agreed that the non-compete restriction was not drafted too widely and the employee would still be able to earn a living and work in insurance, but just not in the competitive sector. The 12-month duration was considered reasonable on the basis that most housing association insurance policies were for more than 12 months.
It must be noted that this particular case may have been decided differently, in circumstances where the non-compete clause applied to the entire insurance sector (and not the social housing sector alone).
In Intercall Conferencing Services Limited v Steer 2007 EWHC 519, the employee was the head of training and personnel at the company. The employee’s contract of employment contained, among other things, an express confidentiality agreement and a six-month non-compete restriction, limited to named competitors. The employee resigned with immediate effect by email and advised his employer that he was leaving to work with one of the named competitors. The company applied for an injunction restraining the employee from working for the named competitor and from disclosing confidential information. The High Court granted the application by the company. The High Court concluded that the employee, in his training role and when substituting for the head of sales, was privy to sensitive confidential information, such as contact details of all customers, details of any sales approaches, employee salaries and sales incentives. It was agreed that this information was not in the public domain, was clearly confidential and would obviously be useful in soliciting customers as well as poaching key staff. It was found that the restrictions were not to be too wide or too vague (even though the restriction's ambit, in this case, was effectively worldwide as no restricted territory had been defined and the competitors had not been fully described in the covenant wording). The six month non-compete restriction was, however, upheld in light of the confidential information as well as the seniority of the employee’s new position with the competitor.
The following key points therefore arise:
Enforcement/Shift Away from Fiduciary Duty
In practice it is accepted that, in local labour markets, there is more movement than in the past and the commercial sector is now more entrepreneurial. There is therefore some argument that the application of fidelity in an employer/employee relationship is on the decline. However, it remains essential that the employee is aware that any breach of the aforementioned types of terms in their employment contract can still come at a cost.
Non-solicitation clauses are subject to the same legal precedent as discussed in 3.1 Non-competition Clauses. An employer must therefore, at a minimum, also consider the following:
One of the main provisions set out in the Data Protection Act 2019 (DPA), which may apply to the employment sphere, is that which refers to principles relating to the processing of personal data.
The DPA defines a data controller as a person who, either alone or together with another person or persons, determines the purpose for, and the manner in which, any personal data shall be processed. Alternatively, a data controller may also be a person who is obligated to process data subject to a separate enactment.
The data controller is therefore mandated under the DPA to take all reasonable steps to ensure that the following persons, who have access to any personal data (eg, personal data of persons in an organisation for the purposes of their own employment), comply with the requirements as set out in the DPA. These relevant persons would be likely to include (but not necessarily be limited to):
Under the DPA, some requirements are that personal data shall be:
The Immigration Act, Chapter 190 (IA), states that no person shall engage or employ any person who is not a citizen of Barbados, permanent resident in Barbados or immigrant, unless there is a work permit in force covering that engagement or employment.
In accordance with the IA, any person who wishes to work in Barbados, and does not fall into the aforementioned category of required persons (see 5.1 Limitations on the Use of Foreign Workers), must apply to the Barbados Immigration Department for a work permit and pay the prescribed fees.
Similarly, any person who desires to employ a foreign worker must make an application to the Barbados Immigration Department for a work permit, in connection with the relevant proposed employee, and pay the prescribed fees. It must also be noted that, prior to proceeding to employ any foreign worker on whose behalf the employer is making the work permit application, the employer must exhaust all efforts in connection with hiring a local individual for the position and prove that these efforts have been made on application to the immigration department. Where the employer has found that no local person is adequately qualified to fill the role, it may then proceed with the relevant steps to hire the foreign individual.
The Barbados Immigration Department's website makes long-term as well as short-term work permits available to non-nationals. The long-term work permit is valid for up to three years, while the short-term work permit is valid for up to 11 months. The relevant work permit application forms (C-1, C-2 forms for long-term permits, and C-3 form for short-term permits) are available on the website of the Barbados Immigration Department for review and completion.
Trade unions command a strong position in Barbados and play a significant role in Barbadian society. Some of the general and discretionary powers which employers might otherwise enjoy are limited by the influence of trade unions. The Trade Unions Act, Chapter 361 (the “Unions Act”), is the statute which governs the trade unions of Barbados.
The Congress of Trade Unions and Staff Associations of Barbados (CTUSAB) was officially registered as a trade union organisation in August of 1995. Later that month, CTUSAB was launched as an umbrella body with the following founding members:
The list of members stated above is by no means exhaustive but is indicative of the wide range of unionised professions in Barbados.
The Role of the Trade Union
CTUSAB has progressively developed as the authoritative voice of Barbadian labour, mostly because it represents the shared views of its members on various national issues in respect of industrial relations and socio-economic and political issues. CTUSAB also works intensively to continuously strengthen the labour movement by influencing policy decisions which impact workers in Barbados and the wider population. Apart from the statutory provisions of the Unions Act, CTUSAB has its own constitution in place. This constitution specifically has several aims and objectives, including:
CTUSAB remains free of any partisan political affiliation. Separately though, CTUSAB and the other unions wield important political power because their members form a large part of the electorate.
Collective bargaining agreements (individually a “collective agreement”) used in Barbados, provide for "informal" rights and obligations at a group level. In contrast, employment contracts provide for formal rights and duties, and must comply with specific labour legislation such as the ERA, the HWPA and the SA.
In Barbados’ unionised environment, a collective agreement can only be amended through the collective bargaining process.
The collective bargaining process has operated very effectively in Barbados to draw parameters around the rights of employers and management to alter, amend, modify, withdraw, terminate or revoke terms agreed collectively which regulate affairs in the workplace. The unions in Barbados have long proved to be active protectors of employee rights and negotiate robustly in that context against employers seeking to make adverse changes.
Collective agreements are respected in Barbados as important sources of guidance and standards in respect of the rights, responsibilities, interests and expectations of employees as well as employers. Although they are technically not legally binding, they cannot, in practice, be broken lightly by employees without proper negotiation. Attempts to flout them have and do result in union-led industrial action. Although such action is not frequent, it does occur and is consistent with the pro-worker labour culture in Barbados.
Requirements in Respect of Termination
The motivation for an employer to terminate an employee’s contract is required a posteriori. Therefore, as discussed in 2.5 Other Terms of Employment, an employer must be able to prove the rationale for terminating an employee’s contract of employment.
Procedures in Respect of Termination
The Fourth Schedule of the ERA sets out “Dismissal and Disciplinary Procedures” which must be followed for a proper, lawful dismissal. The Fourth Schedule is structured in three parts:
Section 29 of the ERA relates to the fair dismissal of an employee and states that the burden is on the employer to show the reason for the dismissal of the employee. Where the employer complies with the requirement to show a substantial reason for the dismissal of the employee, the question as to whether the dismissal was indeed fair, shall depend on whether the employer acted reasonably or unreasonably in treating the reason given as sufficient, and whether the employer complied with Part A of the Fourth Schedule.
In addition to complying with the requirement to give a material reason for the dismissal of the employee, where the reason for dismissal is related to the employee’s capability to perform their work or where the reason is related to the employee’s conduct, the employer is not entitled to dismiss the employee without:
“[i]nforming the employee of the accusation against him [or her] and giving him [or her] an opportunity to state his [or her] case, subject to the Standard Disciplinary Procedures and the Modified Disciplinary Procedures set out in Parts B and C, respectively, of the Fourth Schedule.” (Section 29(5) of the ERA.)
According to Section 31(4) of the ERA, where an employer will, by a collective dismissal, reduce its workforce by 10% or more, prior to the dismissal of any employee, the employer shall comply with the following requirements to:
The consultations referenced above, shall, according to the ERA, begin “no later than six weeks before any of the affected employees is dismissed and shall also be completed within a reasonable time.”
The ERA specifically provides for the rights of the employer and employee to a minimum notice period. Various notice periods are also set out in the ERA as it relates to the contracts of employment for hourly, daily, weekly or monthly paid employees who have been continuously employed for one year or more.
Requirements for Severance Payment where Notice Given or Payment Made In Lieu
Severance payments are not required on top of notice or payments in lieu of notice. However, it is required that, apart from payment to the employee of their salary in lieu of notice, the employer is required to also make the following payments:
Related Points to Note
In respect of payments in lieu of notice, the ERA states that such a payment will not be satisfactory where the amount provided by the employer is less than the sum, net of any tax or other lawful deductions, that the employee would have been entitled to receive from the employer, if the employee had worked throughout the notice period as opposed to opting for payment in lieu of notice.
No other advice or authorisation shall be required in relation to this point, apart from the requirements as set out under the ERA.
Severance for Redundancy
The employee’s right to severance payment is provided for in the SPA. It arises where on, or after the appointed day, an employee who has been continuously employed for the requisite period:
In this case, an employer is liable to pay the employee a sum calculated subject to the First Schedule of the SPA.
Under the First Schedule, the severance payment is required to be calculated by reference to the period, ending with the relevant date, during which the employee has been continuously employed. That period shall also be computed in accordance with the Second Schedule of the SPA, which states that the employee’s period of employment must be computed in terms of weeks. Once an employee is employed for at least 104 weeks, that employee, upon redundancy, is entitled to severance pay.
It must also be noted that, where the nature of an employee’s work is seasonal, an employer will only be liable to pay an employee severance where the event in respect of which the payment is claimed occurs during the course of the season. This can be particularly important in sectors such as agriculture and tourism, which can be seasonal in Barbados.
Timing for the Payment of Severance for Redundancy
Severance payment must be paid to an employee within two months of it becoming due, or within such longer period not exceeding four months. In the event that a severance payment that is required to be paid by an employer has not been paid within the specified period, interest calculated on the unpaid severance payment, at such rate as the minister of finance may fix by order, is payable by the employer for the expiration of the period.
Summary dismissal is recognised as a circumstance where an employer dismisses an employee instantly without notice or pay in lieu of notice, and it is normally based on the gross misconduct of that employee.
As raised in 2.5 Other Terms of Employment and further discussed in 7.1 Grounds for Termination, the procedures and formalities outlined in the Fourth Schedule of the ERA must be followed carefully, even in an event such as summary dismissal. Where the procedures and formalities are not properly followed, the employee may submit a complaint to the CLO which may be escalated to the ERT.
Consequences of Failure to Follow Requisite Process
The ERT may rule in favour of the employee and award compensation to the employee, subject to the Fifth Schedule of the ERA. The employer will therefore be ordered by the ERT to pay the employee an award of compensation consisting of certain amounts, as stipulated by the Fifth Schedule of the ERA.
Termination agreements, including release provisions, are permissible. However, the specific procedures as set out under the Fourth Schedule of the ERA must first be followed in connection with the dismissal of any employee, before providing that employee with a termination agreement.
We are not aware of any statutory requirements as to the enforceability of releases, provided that the Fourth Schedule procedures are observed.
The Ministry of Public Service
In January 2019, the Ministry of the Public Service (the “Ministry”) commenced operation. The Ministry was created via an amalgamation of the following former entities:
The reason behind this amalgamation was to reposition the Ministry in order to give it a more strategic focus on the delivery of human resources services across the public service.
There are also the Public Sector General Orders (the "General Orders"), enacted in 1996 and updated from time to time by the government, and various government ministers hold responsibilities under this enactment. The General Orders provide numerous orders surrounding some of the following points:
Protections for Employees
Some of the provisions of the General Orders protect casual employees in the public service in the context of disciplinary proceedings. One such is an order to the effect that a casual employee may, at their own request, be represented by a friend or a representative of an accredited trade union in any proceedings conducted under the relevant rules. The same protections exist for temporary employees and members of the Security Guard Service.
Repercussions for Representatives
Disciplinary investigations and hearings of protected civil servants who may be represented as described above can be escalated to the courts. These court proceedings can evolve into very lengthy and complicated affairs, requiring representatives/employees to retain counsel.
Grounds for Unfair Dismissal
As previously mentioned under 2.5 Other Terms of Employment, an employee has the right “not to be unfairly dismissed”. Dismissal in certain circumstances will unlawfully infringe this right under the ERA. Examples include:
This right will also be violated where the reason for dismissal is any of the following, including, but not limited to:
The employee may lay a complaint to the ERT on the ground that they were unfairly dismissed by their employer, provided that the complaint is submitted to the ERT:
As discussed above in 7.3 Dismissal for (Serious) Cause (Summary Dismissal), the ERT may order the employer to pay the employee compensation as stipulated by the Fifth Schedule of the ERA.
Grounds for Anti-discrimination Complaints
There are various grounds for anti-discrimination claims set out under the Discrimination Act. Some of them include the following:
Complaints are generally addressed to the CLO and submitted to the ERT. Where the ERT finds that a complaint under the Discrimination Act is well founded, the Tribunal shall make a declaration to that effect. The ERT may also order the respondent to do, among other things, any of the following:
The ERA has established the ERT as the proper employment forum. The ERT’s function is to enforce the rights conferred upon persons by the ERA, and to exercise its jurisdiction to make awards and other decisions in accordance with the ERA. However, an appeal lies to the Court of Appeal in accordance with the rules of court on a question of law from any decision of, or otherwise arising in any proceedings before, the ERT.
Class Action Claims
Class action claims to the ERT are available, as exemplified in the matter of Cutie Lynch v the National Conservation Commission, ERT/2014/064.
Representations in court are generally made by an attorney-at-law of the employee’s choice.
Pre-dispute arbitration agreements are enforceable; however, this does not prevent the employee from proceeding to submit a complaint to the ERT.
There are no claims available for costs in any forums except for the Magistrates' Court and the High Court; therefore, there is no ability for an employee to make a claim for attorney's fees and to be given such an award in respect of legal costs incurred in a matter conducted before the ERT.