A Landmark Victory lead by Caswell Franklyn of Unity Workers Union: Employment Rights Tribunal Decides in Favor of Claimant in Rubis Discrimination Case

Introduction:

In a landmark decision today 1/25/2024, the Employment Rights Tribunal (ERT 2022/001) adjudicated a significant legal dispute between Whyvonna Wiggins-Hoyte (Claimant) and Rubis Eastern Caribbean SRL (Respondent). The Employment Rights Tribunal Panel comprise Kathy-A. Hamblin, SC Deputy Chairman; Frederick Forde, GCM Member and Deighton Marshall, CMgr. Member.  Caswell Franklyn, General Secretary of the Unity Workers’ Union, represented the Claimant in this groundbreaking case, which spanned about 18 months before reaching its conclusion. The Respondent was represented by Sherica Mohammed-Cumberbatch of Carrington & Sealy. 

Background:

The case revolved around the employer's mandate for a weekly negative COVID-19 PCR test result, with the Claimant alleging a violation of section 6 of the Employment (Prevention of Discrimination) Act (E(PoD)A). Whyvonna Wiggins-Hoyte set the precedent by being the first employee to present her case before the Employment Rights Tribunal (ERT). Subsequently, a wave of dismissed employees is poised to follow suit, having already filed for unfair dismissal. However, their cases are still pending, awaiting their turn to be heard by the Employment Rights Tribunal. Among them is a prominent retail business, intensifying the anticipation surrounding these legal proceedings and their potential implications for employment rights. 

Claimant's Perspective:

The Claimant's representative Caswell Franklyn described the case as a straightforward one, and this view was evident in the minimal information provided to the Tribunal during the proceedings.

The Claimant presented two main points. First, it was argued that the Respondent couldn't rely on section 8 of the Employment (Prevention of Discrimination) Act [E(PoD)A], which is an exception to section 6. According to section 8, an employer can only request medical testing or inquire about an employee's medical condition if the test's result is essential to determine if the person meets a genuine occupational qualification.

The Claimant claimed that since she started working for the Respondent in 2012, they never asked her to provide a medical certificate under section 8 of the E(PoD)A. Therefore, she argued that the Respondent's demand for a weekly COVID PCR test wasn't necessary as a genuine occupational qualification.

Additionally, the Claimant contended that when Parliament passed the E(PoD)A, they were aware of the Safety and Health at Work Act's provisions. Despite this awareness, they still enacted section 6, giving it precedence over any earlier legislation. Caswell Franklyn, in his role as the Claimant's representative, argued that the testing requirement was a clear infringement of section 6 of the E(PoD)A. Emphasizing that the Claimant faced the test as a precondition for employment continuation, the case required establishing a timely complaint following the test mandate. Section 6 of the Employment (Prevention of Discrimination) Act under the subheading of "Prohibition against testing for medical condition" states that: 

"Subject to section 8, an employer shall not require a person to answer questions in relation to, or undergo a test for, a medical condition as a precondition to entering into a contract of employment or as a condition for the continuance of employment."

Employer's Defense:

Sherica Mohammed-Cumberbatch of Carrington & Sealy, Attorneys-at-Law, represented the Respondent and based their defense on the recognition of COVID-19 as a workplace hazard during the relevant period. They contended that the testing requirement was proportionate to fulfilling statutory responsibilities, invoking section 22 of the E(PoD)A. Section 22 under the subheading of  "Acts done in compliance with court order or pursuant to enactment" states that:

"An act done in (a) compliance with an order of a court; or (b) pursuant to any enactment,

shall not be taken to be discrimination." 

The Respondent made an additional argument, stating that if the Tribunal determines that the Respondent violated section 6 of the Employment (Prevention of Discrimination) Act [E(PoD)A] and its guideline was discriminatory, then it should acknowledge that when issuing the guideline, the Respondent was lawfully operating under a legitimate exception outlined in section 22 of the Act.

To support this point, the Respondent's representative mentioned a case, Baczak v. Care UK Community Partnership Limited, from the Employment Tribunals in Scotland (Case No. 4100547/2022). In this case, a care home employee raised claims of direct race and religious discrimination due to mandatory vaccination for care home workers. However, the claims were dismissed, and the Respondent argued that this case isn't relevant to the current situation.

Key Issues at Stake:

• Whether the COVID-19 guidelines breached section 6 of the E(PoD)A.
• If a breach occurred, whether the Claimant suffered any consequential disadvantage.

Discussion - Discrimination Analysis:

The Tribunal inferred discrimination, underscoring the significance of the repeated requests for COVID-19 PCR tests in employment continuation. The tribunal explored the legal framework for discrimination under the E(PoD)A, emphasizing distinctions leading to a disadvantage.

Exploring Legal Exceptions:

The Tribunal rejected the Respondent's reliance on the Occupier’s Liability Act (OLA) as inapplicable to safeguarding against a pandemic. It examined the necessity and reasonableness of the testing guidelines in accordance with section 7(1) of the Safety and Health at Work Act (SHAW Act).

Tribunal's Decision:

The Tribunal has confirmed that the Claimant's complaint of discrimination is valid. They stated that the Respondent's policy, which required the Claimant to provide a COVID-19 vaccination certificate or a weekly negative COVID-19 PCR test to work at the office, was discriminatory and goes against section 6 of the Employment (Prevention of Discrimination) Act [E(PoD)A]. Although the Respondent informed the Tribunal that the policy is no longer in effect, the Tribunal warned them not to reintroduce or enforce it without a mandate from the State.

The Claimant did not seek compensation or other remedies allowed under section 32 (b) of the E(PoD)A. The Tribunal believes that any disadvantage or harm the Claimant faced was resolved by the time of the hearing.

The Claimant alleged that the Respondent insisted on her getting vaccinated, but the Tribunal found no evidence to support this claim. They dismissed this complaint and clarified that they cannot award costs, leading to the rejection of the Claimant's request for the Respondent to cover her legal expenses. The decision was unanimous.

Conclusion:

This case not only highlights the intricacies of navigating employment challenges during a global pandemic but also serves as a precedent for employees seeking recourse against mandatory COVID-19 measures. As several employees in Barbados lost their jobs due to compulsory vaccination, those who filed claims for unfair dismissal are anticipating compensation based on the result and decision of this landmark decision by the Employment Rights Tribunal. The Tribunal's decision underscores the imperative for employers to meticulously assess the necessity and proportionality of their policies to avoid potential legal repercussions.