1. Whether the Employment Tribunal was wrong to refuse to adjourn the hearing of a complaint pending the outcome of a criminal investigation into the employee’s conduct; and

2. Whether the decision of the Employment Tribunal was wrong.

Background

The Island Construction v Phillips judgment does not go into the full factual matrix of the employee’s conduct. However, there is enough information in the judgment to discern that the relevant employees were summarily dismissed by Island Construction as a result of conduct Island Construction determined to be serious misconduct warranting summary dismissal.

The employees lodged a complaint of unfair dismissal with the Employment Tribunal. A criminal complaint was commenced and had not concluded by the time of the Tribunal hearing. Island construction requested that the Tribunal hearing be adjourned (postponed) pending the outcome of the criminal investigation. The Tribunal refused to adjourn/postpone the hearing, which went ahead. At the hearing, the Tribunal ruled against Island Construction, who had not appeared to defend against the unfair dismissal complaint.

Island Construction appealed arguing that the Tribunal was wrong to refuse to adjourn the hearing and that, in any event, the Tribunal’s decision was wrong in law.

Decision of the Court

The Honorable Mrs. Justice Subair-Williams struck-out Island Construction’s appeal of the decision not to adjourn the hearing and also dismissed Island Construction’s appeal of the Tribunal’s decision. The judgment highlighted the following, which are, in our view, the key take homes for any employer considering a potential dismissal:

1. It is important that employers take the opportunity to attend and respond to the complaint at the Tribunal Hearing:

“25. Having relinquished the opportunity to appear and having willfully absented from the full hearing which followed, it is hardly open to the Appellants to now complain that they were deprived of a fair hearing based on an adjournment refusal. To do so, in my judgment, would amount to an abuse of process.”

2. Where an employee complains of unfair dismissal, the Employer has the burden of proving that the dismissal was justified.

3. Proper internal investigations were highlighted as the Court ruled against part of Island Construction’s appeal on the basis that it had failed to give the employees the opportunity to respond to the allegations prior to termination.

4. It was open to the Tribunal to reasonably find that the case for summary dismissal had not been made out and that the Respondents had been unfairly dismissed.

Employers should seek legal advice when considering the summary dismissal of an employee. Missteps at any stage could prove costly at any Tribunal hearing.

Share
X.com LinkedIn Email Save as PDF
More Publications
Appleby-Website-Privacy-and-Data-Protection
28 Jul 2025

Insights from the BMA’s Second Consultation Paper on Digital Identity Service Providers

As jurisdictions around the world grapple with the complexities of authenticating digital identities...

Technology and Innovation
24 Jul 2025

Contracts to Manage AI Risk: Part Two (Bermuda)

In part one of this two-part series about artificial intelligence contracts, I discussed the ways th...

Technology and Innovation
22 Jul 2025

Contracts to Manage AI Risk (Bermuda)

This is the first of a two-part article on how artificial intelligence contracts can be used to mana...

Appleby-Website-Insurance-and-Reinsurance
15 Jul 2025

Captives are the grass roots of Bermuda risk

Bermuda has seen tremendous growth in the life reinsurance and insurance-linked securities markets i...

050-Insolvency-Restructuring-Grid-Image
10 Jul 2025

Bermuda: Restructuring & Insolvency

This country-specific Q&A provides an overview of Restructuring & Insolvency laws and regulations ap...

050-Insolvency-Restructuring-Grid-Image
3 Jul 2025

Insolvency law: secured creditors take note (Bermuda)

The recent judgment delivered by the Supreme Court of Bermuda in the matter of Harold J. Darrell hig...

Appleby-Website-Insurance-and-Reinsurance
2 Jul 2025

Bermuda: Education has helped investors get more comfortable as ILS continues to grow

It’s been an exceptionally busy and record first half of the year for the catastrophe bond sector,...

Appleby-Website-Privacy-and-Data-Protection
25 Jun 2025

Impact of Privacy Law on Bermuda Business

On 1st January 2025, Bermuda’s Personal Information Protection Act 2016 (PIPA) came into full forc...

Appleby-Website-Regulatory-Practice
25 Jun 2025

Simplified Due Diligence in Bermuda

Simplified Due Diligence (SDD) and Reduced Due Diligence (RDD) are critical features of a modern, ri...

Appleby-Website-Employment-and-Immigration
23 Jun 2025

Practical Tips for Conducting Workplace Investigations

Allegations of harassment, bullying or other misconduct in the workplace can create a legal mine fie...