A number of changes to the Employment Act 2000 (Act), Bermuda's key piece of employment legislation, have recently been passed and are due to come into force from 1 June 2021. In all, these changes represent a substantial overhaul of the Act. This update sets out some of the key changes that senior management, in-house counsel and HR practitioners should be aware of.
Anti-bullying and sexual harassment policy
It will now be a legal requirement for employers to have in place a written policy against bullying and sexual harassment within the workplace. That policy must contain certain terms, including:
- a statement that employees are entitled to a workplace free from bullying and sexual harassment;
- a statement that the employer will make "every reasonable effort" to ensure that no employee is subject to bullying or sexual harassment;
- details as to how complaints may be brought to the employer's attention.
The Act also includes definitions of "sexual harassment" and "bullying" that employers are required to replicate, in substance, in their policy. Many employers already have anti-bullying and harassment policies in place. These policies will need to be reviewed for compliance with the new rules.
Employers will also be subject to a broad obligation to ensure that "procedures are put in place to assist every employee in understanding the policy". This arguably places employers under a positive duty to deliver anti-bullying and sexual harassment training.
Currently, there is no statutory limit on the length of an employee's probation period and the employer may terminate without notice and for any reason during probation. From 1 June:
- Probation periods for new or promoted employees will be capped at 6 months;
- Employees will be entitled to a review of their performance no later than the halfway point of their probation;
- Following this review, the employer may extend the probation period for a maximum of 3 months;
- Employers may only dismiss an employee during their probationary period for a reason relating to the employee's performance review, performance, conduct, or the operational requirements of the employer's business (as well as serious misconduct).
These changes will limit an employer's freedom to use probationary periods. In providing that employers may terminate only for specified lawful reasons, the legal protection for employees on probation will be brought closer to that for employees who have passed probation.
Before making an employee redundant, employers will now be required to provide them with certain information, including the reasons for the proposed redundancy and the number and categories of employees affected by the redundancy situation. The employee must also be consulted on possible measures that could be taken to avert, minimise or mitigate the adverse effects of the redundancy. These steps must be taken at least 14 days before giving notice of termination.
This is the first time that employers will be subject to a statutory obligation to inform and consult with all employees regarding redundancies. Previously, these steps were only required for employees represented by a trade union or other representative.
Statement of Employment
Additional matters will now need to be set out in the 'statement of employment' required to be given to all employees under the Act, including:
- their entitlement to rest days and meal breaks;
- their entitlement to overtime pay or hours in lieu, and the method of calculation;
- where applicable, the fact that the employment is pursuant to a work permit and the expiry date of that permit; and
- the existence of the employer's policy on sexual harassment and bullying and how that policy can be accessed.
Leave and break entitlements
Leave and rest break entitlements will be amended as follows:
- Meal breaks – Employees who work five or more continuous hours will be entitled to be given 30 minutes for a meal break;
- Ante-natal care – Employees will no longer have to complete one full year of continuous employment before being entitled to paid time off to attend ante-natal appointments;
- Bereavement leave – An employee whose immediate family member has died is entitled to bereavement leave. The definition of "immediate family" is to be expanded from the employee's spouse, child, parent, sibling or household member to now include grandparents, great-grandparents, grandchildren and great-grandchildren.
Further notable amendments to be introduced from 1 June include:
- Changes to the regime by which employers can dismiss an employee for repeated acts of misconduct;
- An extension of the time limit for bringing complaints under the Act, from three months to six;
- A new power for the Government to issue guidance for the purpose of determining "whether a relationship more closely resembles that of an employee than an independent contractor", which will be of note to any company which engages self-employed contractors.
The changes discussed above are part of the Government's intended modernisation of Bermuda's employment legislation. While some are relatively minor tweaks, others are more substantial and will involve a material change to current HR practices, as well as updates to handbooks, policy documents and statements of employment. There are also new issues for employers to consider on termination, whether during or after probation.
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.