Harkin: An Important Decision for Human Rights in Employment Law

About Jennifer HaworthJennifer Haworth

Jennifer Haworth is a senior associate in the firm’s Litigation & Dispute Resolution team. Jennifer has a wide practice in all aspects of civil and commercial litigation both in Bermuda’s courts as well as in mediation and arbitration.

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A recent decision of the Chief Justice of the Supreme Court of Bermuda given on 23 November 2015, illustrates the importance of adherence to Human Rights’ provisions in the employment context. In what has been referred to as a landmark decision, the Chief Justice upheld a decision of a Board of Inquiry that Mr. Harkin (the “Appellant”) “was discriminated against on the grounds of his place of origin in that the promotion procedure was applied to him a prejudicial manner by virtue of his being a contract worker”.

The facts in the case concerned that the Appellant who was employed by the Bermuda Police Service on a five year work permit which commenced in February, 2005. In December, 2009, the Appellant filed a complaint under the Human Rights Act 1981 (the “Act”) alleging that the Commissioner of Police (the “Respondent”) had discriminated against him. The Applicant had qualified for promotion from the rank of constable to that of sergeant and the Respondent had deferred the Applicant’s promotion until it was clear that the Applicant would obtain a new work permit after his then work permit expired in February 2010. After the Applicant filed the grievance about not being promoted as the same time as other officers who also passed the qualifying exams, the Respondent replied advising the Applicant that his employment would not be extended.

The Applicant’s complaint was referred to a Board of Inquiry to determine in July, 2013 that the Applicant had been discriminated against. In August 2013, the Respondent appealed to the Supreme Court against the Board’s finding of liability. The Board further assessed compensation due to the Plaintiff in May 2015 and the Applicant then appealed to the Supreme Court against those findings.

The first ground of appeal made by the Respondent related to whether the Respondent was in fact the correct party. The Respondent had contended that the proper Respondent was the Attorney General or the appropriate Minister under the Crown Proceedings Act 1966. The Chief Justice found that the Board of Inquiry was correct in its finding that the Respondent was the correct party. The Chief Justice said “… it analysed the Police Act and rightly concluded that the Respondent was the person holding the statutory office who was responsible for the administration of the Police. This was a very straight forward basis for the Respondent to be viewed as the most appropriate party …” Accordingly, this first ground of appeal failed.

The Respondent’s second ground was in relation to the issue of whether the Board erred in law in holding that a contract worker could validly complain of employment discrimination in the contract renewal context or at all. The Chief Justice provided some very helpful analysis in this area in his judgment in which he ultimately found against the Respondent rejecting its appeal. The essential aspect of this argument relates to Section 6 of the Act which says that a person shall not discriminate against another person in the employment context for a number of reasons, including “dismissing, demoting or refusing to employ or continue to employ any person” and “refusing to train, promote or transfer an employee”. The Respondent sought to rely on two subsections of Section 6 which it said neutralised the operation of Section 6. Specifically, the Respondent sought to rely on the following subsections:

    (9) For the avoidance of doubt it is hereby declared that the provisions of this Section relating to limitation of or preference in employment shall not apply in respect of any person who on his own behalf or on behalf of any other person seeks to give preference to the employment of a Bermudian …

    (9A) For the avoidance of doubt it is hereby declared that nothing in this Section confers upon any person any right to employment.”

The Chief Justice made clear that certain aspects of prohibited employment discrimination under Section 6 more directly conflict with preferential job access for Bermudians than others. However, he did set out that subsection 9 was “correctly (and unsurprisingly) found by the Tribunal not to be a bar to relief for the Applicant in the present case because, on the facts, the impugned decision of the Respondent to terminate his employment when his contract expired was not based on any or any identified desire to prefer a Bermudian for his position.

Later in the judgment the Chief Justice dealt with the potential conflicting principles in the Employment and Human Rights context. He said:

    in the employment discrimination sphere, the Act seeks to maintain a delicate and somewhat difficult to grasp balance between two potentially conflicting principles: (1) prohibiting discrimination generally and (2) permitting discrimination in favour of Bermudians at the hiring stage. In the popular imagination, this very limited single ‘licence to discriminate’ may well be conceived as an unconditional licence to treat non Bermudians in an unfavourable manner. But this is clearly not what Section 6 intends to achieve in legal terms.

For those and other reasons set out in full in the judgment the Chief Justice determined that it was clear that the Applicant was treated less favourably as a foreign contract officer than Bermudian officers would be treated given that he was from another place and required Immigration permission.

The third ground of appeal was that the Board erred in finding that the retaliation complaint was proved, but the Chief Justice found again that the Board had acted reasonably in the face of “irrefutable written evidence signed by the former Commissioner himself of a decision not to continue to employ the Applicant because he had complained of discrimination, it is unsurprising that the Respondent raised primarily a technical legal defence.

With regard to the appeal points raised by the Applicant, these focused entirely on the Board’s findings in terms of a compensatory order. The Applicant intended that the Board erred in law by finding that he had failed to mitigate his loss, erred in the fact of assessing his loss of wages and pension award and erred in law in limiting the compensation period to three years and overall provided insufficient reasons for its decision. On each of these grounds, the Chief Justice found that the Board had erred and set aside their decisions. He concluded that the appropriate loss of earnings period was five years rather than three, that the appropriate deduction for failure to mitigate loss was 32% rather than 40%, and that the loss of pension award was the agreed figure without the 40% deduction.

This case provides some useful analysis of some key issues of Human Rights’ law in an employment context in Bermuda. Employers will need to consider carefully how they handle the promotions of non-Bermudians given this decision. As always, we recommend that our clients seek advice prior to making key decisions as it relates to conduct in promotions and in terminating employees to avoid certain pitfalls.

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