Employee Rights

Employees have rights which are legislated by law. This section outlines some of these rights and the principal legislation governing employee rights.

Working Hours

The Shops Act Cap 356A which was proclaimed to make provisions relating to shops is used as the model to establish terms and conditions of employment in Barbados. Standard features of this piece of legislation include: a five day workweek comprising 40 hours, a normal workday consisting 8 hours, and provisions concerning employers' duty of care for employees. There is no statutory legal obligation to work overtime, but the law requires overtime payment for hours worked in excess of the normal hours of work. Overtime rates are time and a half for work in excess of 8 hours in any one day within the 40 hours workweek and on rest days; and double time on closed days, which are typically Sundays and bank holidays. Since there is no legal requirement to work overtime unless it is specified as a condition of employment, employers should always reveal if overtime is required during the interview process and incorporate it in the contract of employment. Employers must exercise reasonableness in notifying employees of the need to work overtime. Established practice is that at least 24 hours notification in advance of the request for overtime work is given.

Minimum Wage

Barbados does not have legislated minimum wages, except for household domestics and shop assistants, which is set at US $2.50 per hour. The Ministry of Labour recommends that companies use this as the de facto minimum wage and The Labour Department within that ministry is charged with enforcing the minimum wage.

The pending ‘Employment Rights' legislation makes provision for a written statement of particulars of payment whenever salary or wages are paid
Employers will be required to provide an itemised pay statement to all employees at or before the time payment of wages is made. This statement should include the following particulars:

• the gross amount of wages
• the amounts of any variable or fixed deductions from that gross amount, and the purpose for which those deductions are made
• the net amount of wages payable
• the date of the pay period

Other provisions include:

The right to be consulted before being laid off or placed on reduced hours
An employer is required by law to consult with all employees or their representative, who will be affected by any lay-off or short term dismissal. These consultations must commence no later than 6 weeks before any of the affected employees are laid off or placed on reduced hours and must be completed in a reasonable amount of time.

The consultations should consist of:

• the proposed method of selecting the employees who are to be laid off or placed on reduced hours
• the proposed method of carrying out the lay-off or short-time action, including the period over which the lay off or short-time action is to take place
• any measures that the employer might be able to take to find alternative employment for those affected employees and to mitigate for them the adverse effects of being laid off or placed on reduced hours.

The right not to be unfairly dismissed

An employee has the right not to be dismissed for the following reasons:

• He or she has or was believed to have the HIV virus or AIDS
• The employees sought office of was acting as a workers' representative
• The employee refused to carry out an unlawful instruction given by the employer
• The employee participated in trade union activities outside of working hours or with the consent of the employer during working hours
• The employee removed himself from a work situation because he reasonably believed that it posed a serious danger to his life or health.

The right to a certificate of employment record

Where a contract of employment has ended, an employee has the right to receive a statement/ certificate of employment covering the following basic areas:

• Name and address of employer
• Nature of the business
• Period of the employee's period of continuous employment with the business
• Nature of employee's work immediately prior to end of employment.

The right to a minimum period of notice

An employee has a right to a minimum period of notice according to the following schedule:

• One weeks' notice if the period of continuous employment is less than 2 years;
• Two weeks' notice if the period of continuous employment is 2 years or more but less than 5 years;
• Four weeks' notice if the period of continuous employment is 5 years or more but less than 10 years;
• Six weeks' notice if the period of continuous employment is 10 years or more but less than fifteen years; and
• Ten weeks' notice if the period of continuous employment is 15 years or more

A bulleted synopsis of the principal pieces of labour legislation is outlined for convenience; however, for the accuracy of each statute, reference should be made to the statutes listed:

Holidays With Pay Act (Cap. 348)

Purpose: To provide for holiday with pay for employees.

Features:

• Three (3) weeks holiday for the first four (4) years of service
• Four (4) weeks holiday after five (5) years of service
• Holiday to be given in one period, or if employer and employee agree in two separate periods.
• Six (6) months grace period within which to give holiday
• No less than two (2) weeks' notice of holiday
• Holiday to be increased by one (1) day in respect of each public holiday
• Notice of termination of employment given to employee immediately prior to or during holiday shall be void and of no effect.

Offences:

• Refusing to allow employees to take holiday
• Failing to pay holiday pay
• Failing to keep records
  
• Wilfully delaying or obstructing the Chief Labour Officer

Employment of Women (Maternity Leave) Act (Cap. 345A)

Purpose: To provide for the grant of maternity leave for female employees and for the protection of the employment of those employees during such leave.

Features:

• Certificate from a medical practitioner setting forth the expected date of confinement; or a certificate issued by a medical practitioner or a midwife setting forth the actual date of confinement.
• Must be employed for at least 12 months.
• Not less than 12 weeks maternity leave - not exceeding 6 weeks prior to, as she desires and not less than 6 weeks after confinement.
• 6 weeks additional leave for illness arising out of such confinement.

Protection:

• Right not to be dismissed or given notice of dismissal between date of delivery of Certificate and the expiration of leave.
• Right not to be given notice of dismissal which expires during leave or to be dismissed during leave.
• Right not to be dismissed or required to resign because she is pregnant.
• Right not to be required to resign during time of leave.
• Right on resumption, to seniority rights and reinstatement in her former work or equivalent work.

Shops Act (Cap. 356A)

Purpose: To make new provisions relating to shops.

Features:

• Hours of work not to exceed 40 hours in any one (1) week or eight (8) hours in any one (1) day.
• One (1) hour lunch
• Overtime pay is paid at double time rate for work on closed days, overtime for other days are paid at a rate of one and a half (1 ½) times the employee's ordinary rate.
• Two (2) day rest period per week
• Seating for shop assistants
• Shop assistant not obligated to work on the day of religious worship.
• Overtime is not compulsory
• Rest room facilities to be provided where five (5) or more shop assistants are employed
• Provisions should be made for:
  • adequate facilities for washing and drying of hands with sufficient ventilation
  • suitable privacy accommodation
  • fresh drinking water
  • first aid kit
  • safe means of escape in case of fire
  • proper equipment for fire-fighting
  • exit doors to open outwards
  • audible warning in case of fire

Employment (Miscellaneous Provisions) Act (Cap. 346)

Purpose: To make new provisions relating to the employment of persons generally including young persons and children.

Features:

• "Child" means a person who has not attained the age of 16 years
• "Young person" means a person who has attained the age of 16 years but less than 18
• No child to be employed in any industrial undertaking or ship
• No child to work between 6:00 p.m. and 7:00 a.m.
• No child to be employed during school hours
• No young person to be employed in any industrial undertaking during the night, i.e. 6:00 p.m. to 7:00 a.m. or in any work that is likely to cause injury to his health, safety or morals.
• Chief Labour officer to issue a certificate for an employer to employ persons at night i.e. 9:00 p.m. to 7:00 a.m. in any industrial undertakings if:
  • adequate transportation to and from work is provided.
  • proper rest rooms and facilities for eating meals ate provided
  • adequate intervals for rest and meal-time are afforded the employee.

Protection of Wages Act (Cap. 351)

Purpose: To make provision for the protection of wages of workers.

Features:

• Discount, interest or any similar charge made on account of any advance of wages are prohibited.
• Deductions or payment in respect of fines are prohibited.
• Deductions and assignments of wages should not exceed 1/3 of wages of a pay period.
• Employer shall keep a register of wage payments.

Public Holidays Act (Cap. 352)

Purpose: To amend and consolidate the Acts relating to bank holidays and public holidays.

Features:

• Certain businesses are not restricted from opening on public holidays.
• Public Officers may be required to work on public holidays.
• Shops could be permitted to open on public holidays i.e. arrival of tourist ship.

Severance Payments Act (Cap 355A)

Purpose: To provide for the making by employers severance payments to employees who cease to be employed in circumstances of redundancy or related matters.

Features:

• For severance to be paid, the employee must have had 2 years or 104 weeks of continuous employment with the same employer. 
• The entitlement to severance must be as a result of redundancy; being laid off or kept on short time; or dismissal because of a natural disaster. 
• Redundancy means the fact that the employer has ceased or intends to cease to carry on business for the purposes of which the employee was employed or to carry on that business in the place where the employee was so employed; or the fact that the requirements of that business for employees to carry out work for which they were hired to carry out have ceased or diminished or expected to cease or diminish. 
• Where a full time employee has been laid off or kept on short time during any year for any number of weeks amounting in the aggregate to 21 weeks or more; or an employee is employed in work of a seasonal nature and has been laid off or kept on short time during any year for any number of weeks amounting in the aggregate to 35 weeks or more; then, subject to certain conditions, the employee shall be entitled to a severance payment. 
• In order for an employee to qualify for severance payment, he must be between the ages of 16 and 65. 
• If an employee is severed from employment she is entitled, in addition to severance payment, at least 2 or 4 weeks' notice or 2 or 4 weeks' pay in lieu of notice. 
• An employee's severance pay is calculated as follows: 
  • 2.5 weeks' pay for the first ten completed years of employment, calculated at his average weekly basic pay for the last 104 weeks; 
  • 3 weeks' pay for the next ten completed years of employment; 
  • 3.5 weeks' pay for the every completed year of employment greater than 20 years, but not more than 33 completed years of employment. 
• No tax is deducted from severance.
• Severance payment must be paid within 2 months of its becoming due or such longer period not exceeding 6 months as the National Insurance Board allows. 
• An employer can revoke his decision to sever an employee's contract of employment if the employer offers to re-engage the employee on terms similar to those under which he presently works. 
• An employer who is liable to pay and has paid a severance payment to an employee is entitled to a rebate to be paid out of the National Insurance fund.

The decision to make employees redundant should only be taken after a detailed assessment of the company's present and future needs and the economic climate in which it must operate. In considering the implications of redundancy, management must bear in mind that the objective is to retain a workforce most suited to the needs of an efficient and viable business.

The reasons why redundancy is being considered will have a bearing on the options which management will take in its efforts to minimise its scale and impact. The relationship between management and employees and their representatives will also have a bearing on the options which are taken.

Full consideration should be given to the alternatives to enforced redundancies, which may be appropriate to the company's situation. Examples of alternatives are: short-time, lay-off, transfers to other departments or locations, retraining and/or redeployment, attrition, early retirement and voluntary redundancy.

Prior to the commencement of the consultation process, management should assemble the relevant factors which led to the company's decision and the means of implementing it, e.g. basis of selection. Care should be taken to present these factors in a manner which can be readily understood.

Following the data gathering, management should proceed to inform employees and their representatives on the necessity for reducing the workforce and the most appropriate means of achieving this objective. Consultation should take place on the means of dealing with the effects of redundancy, for example, severance payments; placement; time-off for interviews; advice on social security entitlements; and professional counselling on coping with displacement.