Co-authors: Kiernan Bell, Michael Hanson (Appleby)

A Supreme Court decision handed down on Monday is a stark reminder that employers should tread very carefully when promoting employees. In particular, when considering employees for promotions (or any other internal projects or opportunities) an employer must treat all applicants equally and not prefer one applicant over another on the basis of their national origin.

The case concerned a police officer who had been employed by the Bermuda Police Service (BPS) under a five year work permit as an Authorised Firearms Officer. In July 2009, the BPS Promotions Board formally recommended the Employee for promotion however he was later informed that he could not be considered for the same unless and until his work permit was renewed.

In response, the Officer requested that his work permit be renewed and further filed a grievance with the BPS Human Resources Department for discriminatory treatment in contravention of the Human Rights Act 1981 (Act). The BPS Commissioner invited the Employee to withdraw his complaint and, following the officer's refusal to do so, demoted him from his post and further failed to renew his employment contract.

The Employee's case was that the BPS' promotion policy was applied to him in an unfavourable way, which would not have occurred if he was Bermudian.

The Supreme Court (on appeal) agreed with the Employee, and found that Section 6(9) of the Act only permits employers to give preference to Bermudians in the hiring process. The Act stipulates that outside of the hiring process Bermudians and non-Bermudians must all be treated equally.

This initial discriminatory treatment was aggravated by a deliberate decision not to renew the officer's contract in retaliation for him making and refusing to withdraw his complaint in respect of that treatment. Notably this was not in respect of any desire to prefer a Bermudian for his position.

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