An end to discrimination?

All Barbadians have collided with discrimination in one form or another whether as one who discriminates, as a victim of discrimination or as a warrior against such practices. In Barbados both overt and covert discrimination is expected, based on the colour of one’s skin, the texture of one’s hair and the address at which one lives.

New legislation on discrimination

Barbados’ strongest piece of legislation concerning discrimination is its Constitution which in effect prohibits the Government from discriminating against its Citizens.[1]  The Parliament of Barbados now has before it a proposed piece of legislation called the Employment (Prevention from Discrimination) Bill, 2020 which proposes to address discrimination in the public and private sector.   The mischief which the legislation seeks to cure is clear.

Employment discrimination

The Bill sets out that its objective is to prevent discrimination against individuals in terms of employment. One should note therefore that the Bill is limited to the employer: employee relationship and does not extend to other circumstances of discrimination. The Bill defines discrimination and then sets out exceptional situations where discrimination would not amount to a breach of the law. The proposed legislation includes a requirement that employers prepare and implement an anti-discrimination policy. It would also provide protection for employees who make complaints and allow representative bodies to make applications on behalf of aggrieved persons.

Basis of discrimination

The usual premises on which discrimination is traditionally founded are included in the Bill – such as colour, creed, sex or sexual orientation. There are some others which are not as familiar such as discrimination based on domestic partnership status. This status is defined. A domestic partnership includes two people who are at least 18 years old who are in a genuine domestic relationship. It does not include a married couple or a person who looks after another for a fee. Does it therefore include the relationship of grandmother and grandson or grand daughter for example.

Actions of Employers and Employment Agencies

The Bill seeks to prevent employers and employment agencies from discriminating against individuals in terms of job creation and recruitment.  It also addresses discrimination in the actual workplace. The Bill prohibits discrimination through actions based on conditions of employment, the provision of facilities or services, restrictions on access to opportunities for promotion, transfer, training or other benefits.

The proposed legislation identifies particularly medical testing which is prohibited as a precondition for employment or to continue in employment.

Employer required to make adjustments

The Bill however goes further and requires the employer to make adjustments in its operations to avoid discrimination based on creed, sex, sexual orientation, pregnancy, maternity, family responsibility, medical condition or disability.

The adjustments which the employer could be required to make might be seen as rather onerous. They include allocating some of the duties of the employee to another person; altering the hours of work of the employee; providing the employee with alternative employment; assigning the employee to a different place of work; acquiring or modifying equipment for the use of the employee; making adjustments to premises to be used by the employee; or providing a reader or interpreter to the employee.

Some may view this proposed legislation as making the environment more difficult for employers to offer individuals long term employment and helping to create a preference for hiring independent contractors.

Exceptions to discrimination and making adjustments

Bearing such sentiments in mind there are some exceptions as to what amounts to discrimination and there are exceptions with respect to making adjustments. These exceptions include, for example, situations where there is a genuine requirement for qualifications, where an individual of a particular sex is needed to preserve privacy or decency, and where to make adjustments would cause considerable hardship. There is also an interesting provision which allows discrimination for a time where it seeks to create equality.

Exceptions may also be found in an individual qualifying for charitable causes, insurance, sports, enforcement of legal orders and the performing arts.

Application to Tribunal for compensation

Where there is an allegation of discrimination an application can be made to the Employment Rights Tribunal. Applications can be made with respect to discrimination by employers as well as fellow employees.

The Tribunal can make a number of orders including compensation and  measures to address the discrimination in the workplace.

[1] See Section 23 of the Constitution of Barbados.

Do you qualify as a spouse? Lessons from Albert Selby v Katrina Smith

The deceased, Albert Selby, died without leaving a will and thus his estate is to be dealt with according to the Succession Act and the rules of intestacy which give priority to the deceased’s spouse, children then parents then siblings then nephews and nieces. The deceased was divorced, had no children and his parents died before him. The parties in the Albert Anthony Peter Selby v Katrina Smith [unreported] C.A. B’dos Civil Appeal No 14 of 2010; 2017-02-14 case are the brother of the deceased man and an unmarried woman with whom the deceased was cohabiting up until his death.

At the center of the case is the Succession Act of Barbados, particularly Section 2 which speaks to who is considered a spouse under the Act. Section 2 (3) and (4) of the Succession Act states

(3) For the purpose of this Act, reference to a “spouse” includes

• A single woman who was living together with a single man as his wife for a period of not less than 5 years immediately preceding the date of his death;
• A single man who was living together with a single woman as her husband for a period of not less than 5 years immediately preceding the date of her death.

(4) For the purposes of subsection 3, a reference to a single woman or a single man includes a reference to a widow or widower or to a woman or to a man who is divorced.

One of the two issues which the High Court was asked to determine was whether Ms. Smith is capable of being regarded in law as the deceased’s “spouse” for the purposes of the Succession Act, given that the deceased was a married man during a part of the five year period immediately preceding the date of his death. The High Court decided in favour of Ms. Smith and the deceased’s brother appealed to the Court of Appeal.

The deceased having been married at the start of the cohabitation with Ms. Smith and for a part of the 5 years immediately preceding his death, the issue which the Court of Appeal had to determine was who constitutes a single person for the purposes of Section 2 of the Succession Act.

The Court of Appeal handed down its decision last month and held that Mr. Selby though separated but not divorced from his wife for the requisite period of not less than five years immediately preceding the date of his death cannot be considered as single. The consequence of the Court of Appeal’s decision is that Ms. Smith, who regarded herself as Mr. Selby’s partner for several years cannot benefit from his estate on intestacy since she does not qualify as his spouse.

                                                                                                           – Kara-Je Kellman

Click here to see the article ‘Under what circumstances is a person entitled to inherit from their deceased partner?’

Personal Injuries 101

What are personal injuries? Yes, you guessed it – injuries to your person! To put it in a legal sense, personal injury is harm, pain or suffering to your body, mind or emotions. It does not include damage to property.

Many personal injuries matters arise from vehicular accidents, accidents at work and slips and falls at public places. These matters are often as a result of a person or persons’ negligence or recklessness.

Where it is admitted or found that a party is liable for the injuries, loss and damage suffered by another party, they (or their insurers) are liable to compensate the injured party. In many of the cases involving insurance companies, the matter is settled without having to go to court.

You should note that there is a distinction between quantifiable loss and unquantifiable loss. Quantifiable loss is called Special Damages and unquantifiable loss is termed General Damages.

Special Damages include medical expenses, hospital and doctor’s fees. According to Haynes C in Heeralall v Hack Bros (Construction) Co Ltd (1977) 25 WIR 117,

“Special damages…are awarded in respect of out-of-pocket expenses and loss of earnings actually incurred down to the date of the trial itself. They are generally capable of substantially exact calculation, or at least of being estimated with a close approximation to accuracy.”

On the other hand, General Damages are not capable of exact or approximate calculation. Lawyers, in litigation, or in negotiating a settlement, use the following subheadings under General Damages.

• Pain and suffering (past and future)
• Loss of amenities (loss of enjoyment of life)
• Loss of expectation of life (reduced life expectancy)
• Loss of future earnings
• Loss of earning capacity

Thus, apart from recovering money for medical expenses associated with the injuries suffered, the injured party is generally entitled to be compensated for physical, financial and emotional damage suffered as a result of the accident or incident, which are incalculable in terms of dollars and cents.

                                                                                                           – Kara-Je Kellman

On Harassment and Sexual Abuse: #LifeInLeggings

Over the last several days social media has been alight with personal accounts of sexual harassment, rape, sexual abuse and physical and verbal abuse which stemmed from the above atrocities. Persons, mostly women from the Caribbean, related to the world of social media some of their untold stories. What started as a flame has been the catalyst for many a conversation, discussion, vlog and even newspaper article. Many persons have now finally found the strength and courage to relay their experiences to their friends, associates, strangers – the world.

These posts have been a source of encouragement for some and a reminder to others that they are not alone in their experiences. It has also caused countless persons to reflect, do some retrospection and introspection and realise that they are or were a part of the problem. Many persons have apologised. Many have openly supported the victims and condemned the culprits. Society was also not left unscathed. We know that often at the heart of these issues is how we were conditioned and thus society was also thrown into the fire. In light of all of this, I have undertaken to set out below what the law offers to the victims of these inhumane, highly offensive acts.

The Minor Offences Act Cap. 137 at Section 2 (1) says ‘ Any person who…

(c) wanders in the public streets or highways or in any place of public resort and behaves in a riotous or indecent manner;

(d) in any street, highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(e) loiters in any street highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(f) in any street, highway or public place, including a beach, without lawful authority or excuse (the proof whereof shall lie on the person accused), accosts, molests, threatens or harasses any person or follows him about;

…

commits an offence and is liable on conviction before a magistrate to a penalty of $2500 or to imprisonment for 2 years or both.’

Section 2(2) states that in this Section, ‘ “harass” means to

• Use words, gestures and actions that annoy, alarm or abuse a person;
• Insult, taunt or challenge a person in a manner likely to offend;
• Use obscene and profane language to intimidate a person; or
• Disturb or irritate especially by continued and repeated acts.’

A Sexual Harassment (Prevention) Bill is also in the works and is expected to afford greater protection to employees against sexual harassment in the workplace.

                                                                                                     – Kara-Je Kellman

Gun Violence in Barbados: 100 Days Jail Before Bail?

Recently, there have been discussions on whether a person charged with an offence under the Firearms Act Cap. 179 of Barbados should be automatically sent to jail for 100 days or some other specified period before bail is available to him.

In my view, a person charged with an offence should be treated as innocent until he admits guilt or until he is found guilty. To implement laws which mandate the automatic remand of a person who is charged with a firearm offence not only usurps the power of the presiding judicial officer but defeats a fundamental principle of the rule of law, that is, a person is innocent until proven guilty. The Bail Act already sets out the circumstances under which a judicial officer may deny bail. The Bail Act also states what factors the judge or magistrate may consider when deciding whether or not to grant bail.

In my opinion, Barbados should not follow the twin island Republic of Trinidad and Tobago and amend its Bail Act to mandate that a person charged with certain firearm offences is not eligible for bail or that such a person must spend a certain period on remand before he or she can be considered for bail. Of course, the Court should always seek to balance the interests of society with the interests of the accused person. If the person charged is fit for bail in accordance with the Bail Act, the judicial officer should exercise his discretion to grant him bail.

                                                                                                                   – Kara-Je Kellman

Unfair Dismissal Under The Employment Rights Act of Barbados

The Employment Rights Act (“the Act”) gives an employee who has been continuously employed for at least one year, the right not to be unfairly dismissed. However, the Act also gives an employer the right to dismiss an employee for certain reasons under Section 29 of the Act or for some other substantial reason of a nature such as to justify the dismissal of the employee. Section 29 allows for the dismissal of an employee for reasons relating to the capability of the employee to do the work he was employed to do, the conduct of the employee or where the employee was redundant but subject to Section 31.

However, before dismissing an employee for a reason relating to his conduct or capability, the employer must inform the employee of the accusation against him and allow him an opportunity to state his case.

Whether or not the dismissal was unfair depends on whether the employer acted reasonably or unreasonably in treating the reason as a sufficient cause for dismissing the employee and whether the employer complied with the rules set out in Part A of the Fourth Schedule. These rules include but are not limited to the following: an employee must not be dismissed for his first breach of discipline unless it is gross misconduct; where a breach of discipline does not amount to gross misconduct, the employee should be warned and given a reasonable opportunity to make a correction before more stringent disciplinary action is taken.

The Act provides for many instances where an employee may be deemed to be unfairly dismissed. Some examples of these instances are: if the reason for the dismissal relates to his race, colour, gender, age, marital status, religion, political opinion or affiliation, national extraction, social origin or indigenous origin; if the reason for the dismissal is that: he refused to carry out an unlawful instruction from the employer;   he participated in trade union activities outside, or with the permission of the employer during, working hours; the employee is or was a disabled person in circumstances where the employer could reasonably have been expected to offer the employee alternative employment.

Where it is found that an employee was unfairly dismissed, the Employment Rights Tribunal which was established under the Act, has the power to order the reinstatement or re-engagement of the employee where the appropriate circumstances exist or to make an award of compensation. If either party is dissatisfied with the decision of the Tribunal, that party may appeal to the Court of Appeal.

                                                                                                                                          – Kara-Je Kellman

Should Persons Accused Of Murder Get Bail?

In a preceding article we spoke about Bail in Barbados generally, with particular focus on the Barbadian Bail Act. If you read that article entitled ‘Bail in Barbados- Did You Know?’ you may recall that the Court has a discretion to grant or refuse to grant a person bail and in exercising this discretion the Court may consider certain factors set out by the Bail Act. For some time, Barbadians have been reacting to the Court’s granting of bail to persons accused of certain types of offences. Of particular interest to Barbadians is the Court’s granting of Bail to persons accused of murder. We will therefore briefly discuss whether a person accused of murder should be granted bail.

We realized in the former article that while Magistrates do not have the power to grant bail to persons accused of murder, judges of the High Court have the authority to grant bail to such persons. In Barbados, we have noticed that persons who were on remand for years after being charged with murder, have been granted bail by the Court. This has led to many persons expressing their disapproval with the Court’s decisions to grant  accused persons bail.

Some persons complain that such a decision is unfair to family members of the victim. It is completely understandable that the relatives and friends of the victim would feel some emotion upon hearing that the person charged with the murder of their loved one was granted bail.

There are also persons who disagree with the granting of bail to persons accused of murder because they believe they pose a threat to members of society. There are others, who, because they may not understand what bail is and how it works argue that the accused was released with a slap on the wrist.

Before I refer to the Constitution of Barbados, I must point out that a person accused of murder has not been found guilty of the serious offence; they have only been charged with murder. It is of the greatest importance that we digest this. An accused person has not pleaded guilty neither has he or she been found guilty of the offence for which he or she is charged. Bail should therefore not be seen as a slap on the wrist since it is not a sentence. In fact, time spent on remand awaiting trial may be considered as punishment since, where there is a finding of guilt, the Court treats such time as part of the sentence.

I must also highlight that the fundamental question, among the many questions with which the Court is faced in deciding whether to grant bail, is whether the accused person will appear at Court for the trial of the matter.

Let us turn our attention to section 13 of the Constitution which provides for the right to personal liberty. Subsection 3 is of great significance to the matter at hand. I will set it out in full to avoid butchering the provision.

Any person who is arrested or detained-

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed or being about to commit a criminal offence,

and who is not released, shall be brought before a court as soon as is reasonably practicable; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

Therefore, given this Constitutional provision and the provisions contained in the Bail Act, a person accused of murder is entitled to apply for bail and further, has a right to bail if he or she is not tried in a reasonable time. The Court may attach suitable conditions to the bail to ensure that the accused appears at Court for subsequent court hearings or trial.

                                                                                                                                        – Kara-Je Kellman

(You can read the article ‘Bail In Barbados – Did You Know?’ at: https://bealexattorneys.wordpress.com/2016/03/17/bail-in-barbados-did-you-know/)