Employment Act 2000: Authorities Invoice Proposes Vital Overhaul – Half 1 – Employment and HR

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First published in the newsletter of the Bermuda Chamber of Commerce (Chamber Insider), January 2021

In late November 2020, the government tabled various bills in the House of Assembly that, when completed the full legislative process, will introduce several changes to Bermuda labor law. This article is part 1 of a series of articles in which we discuss the proposed changes and the practical implications they may have on Bermuda employers and workers. Part 1 focuses on some of the proposed changes to the Employment Act 2000 (Act).

Below we provide a brief overview of some of the key changes proposed and our comments on the practical implications for working relationships.

Probationary periods

The proposed changes to Section 19 represent a major change to the Probationary Period Act. Currently, Section 19 of the Act allows an employer to terminate an employee during their probationary period for any reason and without notice.

The new Section 19 (if entered into force) will introduce the following new measures:

• Termination during the probationary period:
  • Employers can no longer terminate employees on probation “for any reason”. Under the new Section 19, employers may only terminate an employee during the probationary period without notice for any reason related to the employee’s performance review (see below), the performance, behavior or operational requirements of the employer’s company.
  • For employees who are serving a probationary period after their promotion, their employment relationship according to the new Section 19 cannot be terminated.

• Performance review requirement:
  • The new section 19 provides that employees who complete a probationary period are entitled to a review of their performance no later than half of their probationary period.

These changes in Section 19 will significantly limit an employer’s ability to terminate the employment relationship during a probationary period, particularly as the employer must now have one of the stated lawful reasons for termination, although it will still be able to provide a summary for Discuss serious misconduct.

Termination for repeated misconduct

Two changes are proposed to Section 26 of the Act that address an employer’s ability to fire an employee for repeated misconduct:

• If an employee is guilty of misconduct and an employer issues a written warning, that written warning must now contain the details of the offensive behavior.
• A stricter regime of repeated misconduct is put in place:
  • Currently, the law provides that an employer can fire an employee for misconduct if it is the second time in 6 months that the employee has committed the specified misconduct, and ONLY if that employee has received a written warning for the first incident Has.
  • The proposed changes add a new provision allowing an employer to terminate the employee’s employment after the fourth incident if the employee is guilty of misconduct on four different occasions within 12 months and receives written warnings for the first three incidents. It is a little difficult to see what this will add to the existing termination notice above in practice.
  • An employer who wishes to terminate the employee’s employment relationship due to repeated misconduct during the periods described above must do so within 14 days of becoming aware of the misconduct. If the employee does not resign within this period of 14 days, he cannot be terminated because of this repeated misconduct. However, the process can be restarted / continued by issuing a further written warning.

Prenatal which

Currently, employees must complete a full year of service before they are eligible for paid time off to attend antenatal appointments. The changes would remove the restriction and give workers paid time off from the start of their employment to attend prenatal appointments.

Funeral leave

An employee whose immediate family member has passed away is entitled to bereavement leave. Currently, however, the “immediate family” is limited to spouses, children, parents, siblings, or members of the household. The new change would extend this scope to grandparents, great-grandparents, grandchildren, and great-grandchildren.

Payments upon termination

There is currently no specific time frame within which an employer is required to pay an employee any wages or money owed as a result of that employee’s dismissal. The intended changes introduce a requirement that an employee must be paid all monies owed within 7 days or the next normal payday after the date of termination.

Meal breaks

There is a legal requirement that every employee who works 5 or more hours without interruption is given 30 minutes for a meal break.

Summary

The various changes discussed above are part of the government’s intended modernization of Bermuda labor law. Many employer guidelines and manuals already contain provisions for some of the new proposed benefits. However, by legislating a minimum standard that must be met, the government guarantees entitlement for all workers. These changes affect each employer differently and may include updates to manuals, individual policy documents and employment statements. There are also new questions employers need to consider when dismissing, be it before or after parole.

Anyone with questions about how the changes may affect their business can contact a member of our Employment and Immigration Office: Bradley Houlston ([email protected]) or Jordan Knight ([email protected]).

Please pay attention to other parts of this series that discuss further changes to the law and the proposed changes to labor relations legislation, with an emphasis on issues related to the certification / decertification process.

The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.

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