EDITORIAL - A fair deal at work

According to a report in The Barbados Advocate for Wednesday, February 26, the Honourable Minister of Labour has given notice of the imminent enactment of anti-discrimination legislation for the workplace. Readers may recall that there was an identical promise made by his counterpart in the twilight period of the now outgone Democratic Labour Party administration.

The enactment of such legislation, whose announcement we warmly welcome, will serve to complete a quartet of statutes whose provisions are all directed to ensuring a fairer workplace for the Barbadian employee; one that takes care of his or her health, safety and welfare, (Safety & Health at Work Act and Employment Sexual Harassment (Prevention) Act 2017); his or her dignity and job security (Employment Rights Act 2012); and now, with the forthcoming statute, a combination of his or her fair treatment in securing employment, how he or she is treated during the subsistence of the employment relation and, to some extent, ensuring that employment is not terminated by the employer because of a prohibited ground of discrimination.

Among the prohibited grounds mentioned by the Minister for which employees may not be terminated, disadvantaged in their terms and conditions of work or denied employment are “class, gender and disability among other things”.

While there already exists some protection from discriminatory dismissals in the Employment Rights Act; such dismissals being treated as automatically unfair; private sector workers are unable fully to avail themselves of the constitutional guarantee against discriminatory treatment because of the state action doctrine which holds that this guarantee is enforceable against the state and its actors only and not against the private employer. In that context, the proposed legislation will effect a levelling of the playing field in terms of protection between the public worker and his private sector counterpart.

Given the bar of the state action doctrine, the worker in the private sector is currently forced to rely on the availability of the scant statutory protection, to be found principally in the Trade Unions Act, Cap 361, that prohibits discriminatory treatment on the basis of union activity or membership in the employee’s terms and conditions of work, and the Criminal Justice Rehabilitation of Offenders Act 1997, that forecloses the reliance upon an expunged conviction as a justification for the refusal to hire an applicant for employment.

In this connection, there are ample instances in the region and elsewhere of such legislation. However, as with most of these matters, the value of the statutory right will have to be measured by the extent to which it is easily enforceable.

Discrimination is exceedingly difficult to establish, more so in the workplace, and we would suggest for the greater efficacy of the protection afforded, the device of placing the burden of establishing non-discrimination on the employer, once the claimant has established a presumptive case.

It should not be that the claimant is called upon to disprove in every case the non-discriminatory reason that would assuredly be advanced by the employer as justification for the disparate treatment of the individual employee.

Further, it must also be recognised that it may be sometimes legitimate to discriminate, once this is effected for a bona fide reason in the public interest. In Trinidad & Tobago, for example, under its Equal Opportunity Act 2000 (as amended) such reasons are where being of a certain sex is a genuine occupational qualification, or where being of a certain religion is necessary for work in a religious institution or where the business is of a domestic or personal nature.