BARBADOS-Tribunal rules against transgender dismissal by law firm

BRIDGETOWN, Barbados, CMC – The Employment Rights Tribunal (ERT) has dismissed a case in which a transgender woman challenged her “unfair” dismissal against a legal firm because the laws of Barbados are silent on transgender identity.

The ERT dismissed the claim brought by Alexa Hoffman, a former clerical officer at Court Caribbean Law Practice. Hoffman contended that the firm terminated her contract without notice on October 26, 2018, alleging that the dismissal was based on gender discrimination.

In delivering the tribunal’s decision on Monday, deputy chair Kathy-Ann Hamblin SC said that Hoffman had no standing to bring a complaint based on gender discrimination.

“As a transgender person, claimant Hoffman has no standing to bring a complaint for unfair dismissal based on gender discrimination, since ‘transgender’ is not a status which is recognized under the laws of Barbados,” Hamblin stated.

The tribunal also ruled that neither Hoffman nor any representative group had made a written complaint of unfair dismissal to the chief labor officer within the statutory limitation period.

However, Hamblin suggested that Hoffman’s claim might have had a better chance of success had she pursued a different legal strategy.

“We thought that a more viable option would have been a claim of constructive dismissal because this claimant was not given a reason and sent home without being paid; and once you don’t pay your employee, that’s a fundamental breach . . . of the contract,” the Senior Counsel said.

The ERT deputy chair was critical of the law firm’s decision to send Hoffman home without referencing the Fourth Schedule of the Employment Rights Act, which outlines disciplinary procedures.

“The Act, as interpreted by the apex court of Barbados, outlaws arbitrary decisions by employers to send home employees for any reason, or no reason at all, without observing the standard or modified disciplinary procedures set out in the Fourth Schedule,” Hamblin said.

The tribunal heard that Hoffman had applied for the position using Alexa Hoffman and attended an interview presenting as such. Her transgender status was not disclosed until approximately two weeks into her employment.

Nigel Bennett, the firm’s managing partner, had asked Hoffman to use her legal name at work, citing the nature of the job and the name on her identification documents.

But Hamblin said, “The Laws of Barbados make no provision for the claimant to insist on being, or request to be addressed by a feminine pronoun. Similarly, no employer included, given the current state of the law, can be compelled to refer to the claimant by a feminine pronoun if they choose not to.”

She urged Parliament to consider amending the law “to reflect an evolving Barbadian society and world view and to meet the State’s international obligations.”

She said that in the absence of a legislative framework, transgender individuals are entitled “to freedom of choice in their private life, and basic human dignity.”

Hamblin said that the case has highlighted the need for more precise legal protections for transgender individuals and may prompt discussions about potential legislative changes to address gender identity in the workplace.

She noted that had Hoffman pursued a claim of constructive dismissal, it “would likely have withstood the respondent’s defense of job abandonment and repudiation of the employment contract, even though the claimant had engaged in conduct which, but for the breaches identified, would have justified summary dismissal.”

The tribunal’s ruling emphasized that employers cannot arbitrarily send workers home without following proper procedures.

“Section 27 (1) of the Act was triggered immediately [after] the respondent made a unilateral decision to force the claimant to go on leave without notice and without being notified of the reasons for that action, without a hearing, a right of appeal and without pay,” Hamblin explained.

Hoffman admitted to formally applying for a clerical position named Alexa Hoffman. After that, the claimant attended an interview with Bennett, who identified as Alexa Hoffman.

Hamblin said that due to a ‘miscommunication,’ no information relating to the claimant’s gender or legal identity was disclosed to the respondent before Hoffman was hired.

Hamblin said approximately two weeks into the employment contract; the claimant was placed in a position where “I had to reveal my status as a transgender woman,” adding “that situation arose when attorney Bennett asked the claimant certain questions relating to the origin of the surname ‘Hoffman.’”

The tribunal heard that once the identity had been revealed, Bennett not only told Hoffman that this should and could have been done before but that he needed the claimant to use their legal name while at work, given the nature of the job. Bennett also reasoned that the legal name appeared on the claimant’s identification document.

“An immediate demand by the claimant to be referred to as ‘she,’ upon the legal change of name, justified the employer, who vehemently protested that the request was inconsistent with the law, seeking clarification of its legal position,” Hamblin said, calling for “meaningful dialogue with the people of Barbados” to determine if and how the law should be amended to address these issues.”