First Published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider), January 2021
At the end of November 2020 the Government tabled various bills in the House of Assembly that will, if they complete the full legislative process, introduce several amendments to Bermuda's employment legislation. This article is Part 1 of a series of articles in which we will discuss the proposed amendments and the practical implications they may have for employers and employees in Bermuda. Part 1 focuses on certain of the proposed changes to the Employment Act 2000 (Act).
Below we provide a brief outline of some of the key proposed changes and our comments on the practical implications for employment relationships.
The proposed amendments to Section 19 represent a significant change to the law on probation periods. 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 enacted) will introduce the following new measures:
- Termination during probation period:
- Employers will no longer be able to 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 a reason relating to the employee's performance review (see below), performance, conduct, or operational requirements of the employer's business.
- For employees that are serving a probationary period after being promoted, their employment cannot be terminated under the new section 19.
- Performance review requirement:
- The new section 19 will provide that employees serving a probation period are entitled to a review of their performance no later than the halfway point of their probation period.
These changes to Section 19 will significantly limit an employer's ability to terminate employment during a probation period, particularly because the employer will now need to have one of the specified lawful reasons for termination, although they will still be able to discuss summarily for serious misconduct.
Termination for repeated misconduct
There are two changes proposed for Section 26 of the Act, which deals with an employer's ability to dismiss an employee for repeated acts of misconduct:
- Where an employee is guilty of misconduct and an employer issues a written warning, that written warning must now set out the details of the offending conduct.
- A more prescriptive regime in
relation to repeated misconduct will be introduced:
- Currently, the Act states that an employer can dismiss an employee for misconduct if it is the second time within 6 months the employee has committed the particular misconduct and ONLY if that employee received a written warning for the first incident.
- The proposed amendments add a new provision that if, within 12 months, the employee is guilty of misconduct on four separate occasions and receives written warnings for the first three incidents, an employer can terminate that employee's employment after the fourth incident. It is somewhat difficult to see what in practice this will add to the existing basis for termination referred to above.
- An employer that wishes to terminate the employee's employment for repeated misconduct during the time periods described above must do so within 14 days of becoming aware of the misconduct. Failure to terminate within that 14 day period means the employee cannot be terminated for that repeated misconduct but the process can be restarted/continued by the issuance of a further written warning.
Currently, employees have to complete one full year of employment before being entitled to paid time off from work to attend ante-natal appointments. The amendments would see that restriction removed and employees will be entitlement from the start of their employment to paid time off for attending ante-natal appointments.
An employee whose immediate family member has died is entitled to bereavement leave, but currently "immediate family" is limited in the scope to spouse, child, parent, sibling or household member. The new amendment would expand that scope to include grandparents, great-grandparents, grandchildren and great-grandchildren.
Payments upon termination
Presently, there is no express time frame by which an employer is required to pay an employee any wages or moneys owed as a result of that employee's termination. The intended amendments will introduce a requirement that an employee be paid any moneys owed within 7 days or on the next normal pay day after the date of termination.
It will be a legislated entitlement that any employee who works 5 or more continuous hours will be given 30 minutes for a meal break.
The various changes discussed above are part of the Government's intended modernisation of Bermuda's employment legislation. Many employers' policies and handbooks already include provision for some of the new proposed benefits, however, by legislating a minimum standard to be met the Government is guaranteeing the entitlement for all employees. These changes will impact each employer differently and may involve updates to handbooks, individual policy documents and statements of employment. There are also new issues for employers to consider on termination, whether before or after probation.
Anyone with any questions concerning how the amendments may impact their business can contact a member of our Employment and Immigration Practice: Bradley Houlston (firstname.lastname@example.org) or Jordan Knight (email@example.com).
Please look out for further Parts of this series, which will discuss other changes to the Act and the proposed amendments to the Labour Relations legislation, focusing specifically on the issues surrounding around the certification/decertification process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.