Options for employers during National Pause

by Brittany Brathwaite

Employers are facing a difficult reality with the imminent pause, many of whom, already explored one or more of the options outlined below during 2020. There are several considerations when adjusting/varying employment arrangements.

Employers are therefore urged to seek specific guidance, subject to their reality and the plausible extension of this pause.

As there will be an undoubted impact on their ability to appropriately manage their employment arrangements during and beyond this period.

Lay off & Short Time

Provisions within the Employment Rights Act; Section 38 outlines requirements around consultation, as well as the requisite provisions within the Severance Payments Act, treat to the handling of Lay off and Short Time Periods.

There is an inherent requirement to aptly manage the utilization of these options if one intends to avoid the triggering of a severance payment/liability – simple administrative errors and miscounts around lay off / short time periods could result in an employee being eligible to file for severance.

Additionally, employers are reminded that the Sunset Legislation passed in 2020, which provided the opportunity for the extension of the layoff period to twenty – two (22) consecutive weeks without the triggering of an employee’s right to severance, has now been reset.

As such, the previous maximum; 13 or more consecutive weeks; or a series of 16 or more weeks (of which not more than 12 were consecutive) within a period of 26 weeks, as established under Section 6 of the Act are now applicable.

What if the employee does not desire to trigger their severance payment?

*The below applies solely in cases where employees have NOT already received the unemployment benefit for a full twenty-six (26) weeks*

Where an employer intends to re-engage an employee and the employee does not intend to trigger severance – in cases where the thirteen (13) weeks or sixteen (16) in twenty-six (26) have been surpassed.

The employer should still issue the Lay off certificate to the employee with the intended restart date.

The National Insurance Scheme will pay the unemployment benefit to the employee, and this is payable up to, the difference between the number of weeks already used and the maximum twenty-six (26) weeks.

If Lay Off or Short Time may be on the table for consideration for some, it is crucial to remember that where these periods may have exhausted one OR both above the options in 2020, employees will not be eligible for benefits through the National Insurance Scheme until 52 weeks post the first claim.

Reduction of work weeks/Reduction of Pay

Reducing an employee’s work week and commensurately reducing their pay cannot be a unilateral endeavour.

Where this is being undertaken outside of the remit of the technical definition of “short time” an employer should garner and/or provide the following:

– Signed agreement by the employee to the reduction

– Definitive time frame for the current reduction

– A date by which it should be reviewed in the future

Contracts are legally binding documents and unless there may be the enforcement of a force majeure clause, you remain obligated to go about appropriately undertaking amending these agreements.

Holiday with Pay

There has been a deafening reminder from many sources around the legislative obligation of an employer. That is, to provide the requisite notice of fourteen (14) days to an employee, if they wish for them to proceed on holiday.

In the absence of the ability to provide said notice, having the employee proceed on holiday must be a mutually agreed step.

What I’d wish to add to this circulating reminder is, that no employer should execute the above, without adequately documenting and having the employee signing in agreement to proceed on this time off.

While employees may acquiesce to your request verbally, should you not have that properly documented, an employee could claim in the future they were forced to proceed on leave.

It is imperative therefore, even in the midst of all else ongoing, that accurate records of these agreements are maintained.

Advance Holiday

Extending advanced holiday is a far more nuanced and cost intensive option for many during the imminent pause.

During the 2020 National Lockdown many employers had already advanced vacation, and in several cases, employees still have not yet accrued that previously advanced total.

This option does provide a cushion for employees, versus the immediate exploration of an option which would prompt a benefit
via the Social Security Scheme or a reduced earnings option.

It is, however, not legislatively mandated and employers should ensure they have an accurate handle of what this increasing cost looks like versus other options prior to utilising.

As outlined above, documenting this is critical, additionally though, comprehensively informing an employee of any future implications around taking this advance holiday should also be included. For example, should they leave your employment before accruing the holiday, which is being extended, how will that be handled?

Unpaid Leave

Where an employer does not have the ability to advance holiday, sustain a reduced work week and Lay Off or Short time benefits have been exhausted in the prior year, a final option of an unpaid leave period may be explored.

You should be cautioned nonetheless, that this extends into murky legal waters, particularly, where employers are unsure of how long this pause may go on.

An employee may for example, unilaterally determine, despite an established and agreed period for unpaid leave, that they wish to trigger their severance payment. This should therefore be the final consideration.

Not all options could fit on this page, but these are the most common ones being explored. While adhering to the minimum requirements within the varying pieces of legislation, employers should ensure that the peculiarities in the execution of these options are as seamless as possible.

Brittany Brathwaite is president of the Human Resources Management Association of Barbados (HRMAB), a national policy contributor & regional consultant.