Organisation Supports ERT Decision on Transgender Woman's Unfair Dismissal Claim in Barbados

The tribunal heard that Hoffman had applied for the position using the name 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.

Hamblin ruled: “The Laws of Barbados make absolutely no provision for the claimant to insist on being, or request to be addressed by a feminine pronoun. Similarly, no one, 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.”

The ERT deputy chair added that in the absence of a legislative framework, transgender individuals are entitled “to freedom of choice in their private life, and to basic human dignity”.

The case has highlighted the need for clearer legal protections for transgender individuals and may prompt discussions about potential legislative changes. ERT Deputy Chair Hamblin called for “meaningful dialogue with the people of Barbados” to determine if and how the law should be amended to address these issues.

The ruling has also underscored broader issues regarding workplace protections and employer conduct. Hamblin emphasised that employers cannot arbitrarily dismiss workers without following proper procedures, stating: “Section 27 (1) of the [Employment Rights] 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.”

Hoffman had formally applied for the clerical position under the name Alexa Hoffman and attended an interview with Bennett, identifying as such. But Hamblin noted 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.

Approximately two weeks into her employment, Hoffman “had to reveal my status as a transgender woman” when Bennett asked questions about the origin of her surname. Upon this revelation, Bennett reportedly told Hoffman that this should have been disclosed earlier and requested that she use her legal name at work, given the nature of the job and the name on her identification documents.

The tribunal heard that Hoffman’s subsequent “immediate demand” to be referred to as “she” upon legally changing her name led to the employer seeking clarification on its legal position, as Bennett “vehemently protested that the request was inconsistent with the law”.

Lascaris of Equals Inc praised the tribunal for taking the time to explain where there are gaps in the laws relating to transgender people and other vulnerable minority groups. He said: “I think that decision of the Employment Rights Tribunal was fair, and they took a lot of time to make sure to explain their decision and to highlight the way that the law was needed to be updated and brought into modern times, for a modern society that has just become a republic, and to make sure that everybody is covered under the law.”

CTUSAB’s DePeiza advised that “claimants have a responsibility to ensure that the application to the ERT is in accordance with the guidelines, rules and procedures”. He also argued that the tribunal must be guided by existing laws, the Constitution of Barbados, and most importantly, the facts of each case.

emmanueljoseph@barbadostoday.bb