The UK’s response to the illegal treatment of employees
In the summer of 2022, P & O Cruise Liner, without warning, terminated the employment contracts of over 800 of its employees. No notice was given to these employees, some of whom were employed with the company for 14 years and upwards. In a few days after this draconian action, the then Business Secretary Kwasi Kwarteng issued a statement which made it abundantly clear that the United Kingdom (UK) government was willing to consider taking action against the company on account of the potentially unlawful manner in which it had treated its employees. Kwarteng was not a lone voice from the Cabinet. Downing Street and other members of the UK cabinet, along with members of parliament spoke up and condemned the naked disregard for the law.
The foregoing response of the UK’s Cabinet is to be contrasted with the lack of condemnation and action by the Cabinet of Jamaica to the despicable and rapacious action on the part of some firms in Jamaica’s security sector who have decided, in their quest to ignore the law as declared by the Supreme Court in the case of the National Housing Trust v Marksman Ltd. In a nutshell and to the relief of hundreds of families across Jamaica, the Justices made it clear that security guards were employees. No longer will or should the Security Guards be regarded as self-employed. The benefits to a security officer are immense starting with their right not to be unreasonably dismissed and of course their right to paid leave. The context within which the case was brought is worth noting, if only because it does shed useful light on the conduct of the companies over the years. The National Housing Trust (NHT) initiated proceedings against Marksman (one of the largest employers in the sector) as there had been a failure on its part to pay over to the Trust, statutory deductions that it had withdrawn from the salaries of its employees. This it was doing even though it was maintaining, rather dishonestly, that the security officers were not employees. In Jamaica an employer can only make mandatory deductions from the salary of an employee.
Of course the decision will require the security firms to put in place amended contracts and most importantly, as you and I would have thought, the contracts must recognize the years of service that the individual officer has been employed. However, the security companies, in a blatant demonstration of their disregard of the law as declared by the Judiciary, has presented new contracts to its officers and those contracts are contrary to the ruling of the Court.
The response of the Jamaican government to security guards who have not been made employees
The government’s response thus far has been to say that no security company will have its contract with the government renewed if the company has failed to update its arrangements in line with the decision of the court. But of course that is just a fraction of the dozens of companies in the industry. What about those who do not depend on the government? Well the government, through its Information Minister, Robert Nesta Morgan, has told security officers that, they “…have a duty to protect their own rights”. Yes you read correctly.
One should be amazed at this spineless abdication of its duty on the part of the government. It flies in the face of our understanding of the role of the different branches of government as set out under our constitution. In that, it has long been the tradition that the role of the executive (in this case the Cabinet) is to ensure that the laws of the land, be they statute based or common law, are respected and observed by all- even those with large bank accounts. In the Jamaican Whitehall constitution, the Cabinet sets policy and invariably Bills are taken to Parliament by Ministers if there is a need for such legislation to protect rights or to enforce those rights. Citizens expect and have a right to expect that government will legislate in those instances where their rights are being denied or alternatively steps will be taken by their state to enforce and protect their rights. This is because the citizen, the moral philosopher John Rawls tells us, gave up some rights in exchange for a promise from its government that it will protect the citizen. The Information Minister, who has had legal education, and the government, who has at its disposal a battery of eminent lawyers (including two Kings Counsel in the person of the Attorney General and the Minister of Legal and Constitutional Reform), seem rather oblivious to this salient point. How else does one explain the Minister’s attempt to rewrite basic constitutional law and jurisprudence and the government’s lack of a complete response? How else does one explain to a child whose father or mother has been at home because the government has failed to do the sensible and constitutionally correct thing to ensure that his/her parent can return to work?
I know that the government knows better as it has taken steps to ensure that those security officers that it engages are working for compliant companies. In this regard, and because it knows better, the government should act with dispatch and use its majority in the Lower House of Parliament and its control of the parliamentary time-table, to bring emergency legislation to protect the rights of these officers as declared by the courts, where private entities are failing to observe the law. Such a legislation should provide for the deregistration of any security company that is in breach of the law and additionally, for the period when the employee is compelled, by the unlawful action of the employer to stay home, the company must be made to reimburse the employee.
The constitutional laws of Jamaica still stand
Our country is still one of laws, and it does the government no favours for it to be sending mixed messages to the hardworking members of the security industry. That message being of course that if you happen to work for those security companies that are engaged by the government, then you will enjoy the benefits accorded you by the law, but if you are not so lucky, then you had better find a way to protect and enforce your own rights. This is not a solution to this problem: the government cannot stand by and allow these companies to ignore the law whilst they seek to protect their financial interest. We have a governance structure and it is in times like these, when the big challenges present themselves, that citizens expect the government to protect their rights, as under our constitutional arrangements, rights are enforced, not by citizens, but by the state. That is basic constitutional law that anyone who has had at least half a semester of constitutional law should know. Courts interpret the law and occasionally declare rights. Governments or the State enforce them, not citizens.
Matondo K. Mukulu is a practising Barrister.