Employment Act amendments now in force: tougher rules for disciplining and dismissing employees in Bermuda

According to the Minister of Economy and Labour (Minister), the amendments aim to strengthen protections against disciplinary action or dismissal during leave and off-duty periods, improve case management before the Employment and Labour Relations Tribunal, and strengthen enforcement of unpaid Tribunal awards.

Employers should note the following changes:

Protections during leave and off-duty periods

Employers must not (i) give notice of termination; (ii) dismiss an employee without notice for serious misconduct; (iii) issue written warnings for misconduct and unsatisfactory performance; or (iv) take disciplinary action generally, while an employee is:

• on vacation, maternity, paternity, parental or bereavement leave;
• on sick leave, unless that leave exceeds six weeks;
• on any other leave to which they are entitled under an agreement or employment contract; or
• off duty.

The EA does not define "off duty". The Minister has described it as being "free from work tasks or job responsibilities", but its meaning will ultimately be determined by the Employment and Labour Relations Tribunal.

Despite these restrictions, employers may take immediate disciplinary action in cases of documented urgent risk, including, but not limited to, where there is fraud, theft, or safety risk. They must provide written reasons to the employee, the Department of Labour and the employee's trade union or other representative (if any) within seven days of taking the action.

Definition of 'disciplinary action' clarified 

For the purposes of Section 24, the EA now clarifies that "disciplinary action" includes verbal and written warnings; disciplinary notices; notices of disciplinary meetings, suspension or dismissal; and formal allegations of misconduct delivered physically or electronically. Each is therefore subject to the EA's requirement that all disciplinary action be reasonable. Employees may complain to Labour Relations if they consider any such action unreasonable.

Tribunal case management powers 

The EA now requires a case management hearing as soon as practicable after a matter is referred to the Employment and Labour Relations Tribunal. The Tribunal's new case management powers allow it to:

• schedule hearings taking account of its calendar and the parties' availability;
• limit how many adjournments parties may obtain;
• approve or reject adjournment requests; and
• make orders or give directions on its own initiative or at a party's request.

Anyone who seeks to delay or frustrate proceedings by refusing to confirm availability or participate in scheduling may face a civil penalty imposed by the Tribunal.

30-business-day period for Tribunal decisions

The deadline for the Tribunal to notify parties of its award has been extended from 30 days to 30 business days after the hearing concludes.

According to the Minister, the extension gives Tribunal members "a more realistic period to prepare comprehensive and well-reasoned decisions".

Status and enforceability of Tribunal awards 

The EA now expressly provides that a Tribunal award, including an order to pay compensation, is enforceable as an order of a court of summary jurisdiction in civil proceedings. This clarifies the legal status and enforceability of Tribunal awards.

Notices of continuing non-compliance 

If an award or civil penalty remains unpaid after the appeal deadline, the Director of Labour may serve the non-compliant party with a notice of continuing non-compliance. The party then has 14 days to make representations or provide proof of payment.

An employee's right to request service of this notice does not affect any other remedy available to them in the Supreme Court or a court of summary jurisdiction.

Publication of a Naming Register for Unpaid Tribunal Awards

The Director must now publish a "Naming Register for Unpaid Tribunal Awards".

A non-compliant party may be listed if:

• an award or civil penalty is still unpaid 14 days after a notice of continuing non-compliance is served; and
• no objection or stay of enforcement remains outstanding.

The register may include the non-compliant party's name, the amount outstanding, relevant dates and whether the amount is unpaid, partially unpaid, paid, under review or stayed pending appeal. Employees' names and other confidential information will be excluded.

Safeguards allow a party to object to a proposed entry on specified grounds, including full payment, a pending appeal, improper service, circumstances beyond its control or disproportionate publication. A party may also apply to correct, annotate or remove inaccurate or outdated entries.

Higher civil penalties for non-compliance

Alongside civil penalties of up to $10,000 for breaches of the relevant legislation, the Tribunal may now impose civil penalties of up to $15,000 for failure to comply with a Tribunal award.

In assessing a penalty for non-compliance with an award, the Tribunal must consider factors including how long non-compliance has continued, the amount unpaid, whether non-payment appears deliberate, any previous non-compliance, the party's financial circumstances and any prejudice to the employee.

Application to earlier unpaid awards 

The new non-compliance notice and Naming Register provisions also apply to awards made or payable before 1 November 2026 that were still outstanding on that date.

Closing observations

Employers should review their disciplinary, performance-management and dismissal procedures to prevent formal notices being issued during protected leave or off-duty periods. Internal processes should distinguish routine disciplinary matters from documented urgent risks and ensure the required written notifications are given when an urgent-risk exception applies.

Employers should also review Tribunal-facing procedures to ensure prompt participation in case management and scheduling, and compliance with directions. Adequate processes to monitor and promptly satisfy Tribunal awards will help reduce exposure to civil penalties and reputational damage from publication on the Naming Register.

To discuss what these changes mean for your business, please contact anyone listed on this page.