The Supreme Court of Bermuda (the Court) has handed down a landmark labour judgment with immediate ramifications for employers dealing with employee complaints under the Employment Act 2000 (the Act). The overall effect of this decision is expected to increase the bargaining power of employees in any complaints brought under the Act.

In Janice Fleming vs the Director of Labour and Training [2013] SC (Bda) Civ (18 December 2013), the Court held that when a complaint brought under the Act is not settled by conciliation, an Employment Inspector must refer the complaint to the Employment Tribunal if the facts alleged in any complaint would, if proven, give the employee some chance of success before the Employment Tribunal.

The ruling also contains detailed guidance on the role of the Employment Inspector which will be significant for any employer responding to complaints made under the Act.

In addition, there will be significantly reduced scope for an employer to seek rejection of an employee complaint before the matter is referred to the Employment Tribunal. This will require employers to form a view on the merits of an employee's complaint at an earlier stage, in order to accommodate the near inevitability that a complaint will reach the Employment Tribunal if it is not settled at the conciliation stage.

Henry Tucker of Appleby (Bermuda) Limited represented the successful employee in this case.

To view the full judgement please click here.

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