HRC: Police discriminated against expat officer
Police chiefs unlawfully discriminated against a UK officer when they promoted Bermudian colleagues ahead of him — even though some had scored lower marks in their Sergeant exams.And when the officer filed an internal complaint against that decision, the Bermuda Police Service (BPS) retaliated by kicking him off the force, according to the Human Rights Commission (HRC).Michael Harkin signed up with the BPS in February 2005 on a five-year contract. During his time in uniform, the officer’s record was exemplary. Within a year he had qualified as a member of the Underwater Search and Rescue Team and later became an Authorised Firearms Officer after being recognised as a crack marksman.And in July 2009, with six months of his contract still to run, he successfully passed a selection process to obtain the rank of Police Sergeant, placing fourth out of nine officers who passed the test.Mr Harkin became concerned a month later when all eight of his fellow officers were promoted to Sergeant, while he remained a Pc. Mr Harkin was the only officer on a work permit and he was later told by then-Deputy Police Commissioner Michael DeSilva that his promotion was being “deferred” until his work permit — due to expire in six months — had been renewed.In October 2009, Mr Harkin submitted a written request that his contract be extended, and two weeks later filed a complaint with his employer, arguing that he had been discriminated against on the grounds of his nationality. At a subsequent meeting with human resources officer Michael Trott, he explained that he had sought independent advice from the HRC before filing his grievance. A month later, Mr Harkin was told in a letter from Police Commissioner George Jackson that his relationship with the force was “no longer harmonious” and that his contract would not be renewed. Mr Harkin was subsequently switched from the Armoured Response Vehicle Unit and placed on Magistrates’ Court duty. He left his job and the Island in December 2009, filing a complaint with the HRC before retuning to the UK.During a HRC hearing into the complaint in February, lawyers for the BPS argued that employers had a right to promote Bermudians ahead of guest workers.“Even if he was being treated less favourably than Bermudians — so what? The Human Rights Act allows that. It says that you can give preference to Bermudians,” attorney Richard Horseman said.But in a ruling handed down by the HRC panel this week, that argument was thrown. Instead, the panel agreed with lawyers for Mr Harkin, who had argued that Human Rights legislation “trumps” Immigration laws.The panel also refuted a number of claims by the BPS. During the hearing, Mr Horseman said that senior officers had been unaware that Mr Harkin had met with the HRC before filing his complaint.But in its ruling, the panel noted: “It is reasonable inference that the Chief of Police had imparted to the Deputy Chief of Police that the complainant had consulted the HRC in relation to his perceived breach of human rights.”The BPS had also highlighted a number of performance infractions against Mr Harkin, suggesting that these were sufficient reason to deny promotion. He had once attended a meeting wearing the wrong belt, and had shown up late for a shift on two occasions following a restructuring of the rota.But the HRC rejected this argument, saying the infractions were “minor” and that Mr Harkin’s work appraisal had been “persistently satisfactory”.And the panel also found that the BPS demoted Mr Harkin and failed to renew his contract in a retaliatory action after learning that he had sought advice from the HRC to establish if he had a valid complaint.Noting that the BPS had placed an advert in an overseas publication for firearms officers shortly after Mr Harkin had left the force, the panel said: “The termination of the complainant’s employment was in fact to penalise him for having disclosed to Michael Trott that he had sought the HRC’s assistance in drawing up his grievance.“The complainant also exhibits the advertisement in the UK press seeking authorised firearm officers. This follows so closely upon the departure of Harkin that this evidence together with other evidence mentioned leads us to conclude that Harkin was in fact penalised for disclosing his complaint under the Human Rights Act.“We have no difficulty in finding that ... Commissioner Jackson terminated the complainant’s contract to penalise the complainant for lodging his grievance alleging discrimination, and that the transfer ... to a less well-paid position was similarly motivated.”Summarising its findings, the panel concluded that the BPS had “violated” Mr Harkin’s human rights by “unlawfully discriminating against him on the basis of his place of origin” by failing to promote him.It added that the BPS had “unlawfully retaliated” against Mr Harkin by not renewing his contract and effectively demoting him from the Armoured Response Unit to court officer.Last night the BPS did not respond to requests for comment by The Royal Gazette.
The lawyer who successfully represented former police officer Michael Harkin in his discrimination complaint against the BPS believes that the ruling represents a landmark that will influence future human rights cases.Allan Doughty of law firm Trott and Duncan said that there were “key issues that were determined in this matter for the first time in Bermuda”.“During the hearing, an argument was raised that preferential treatment of Bermudians in a promotion process is justified under current Immigration Policy,” Mr Doughty said.“The Board of Inquiry, however, found that the Immigration Act does not authorise such conduct. The Board of Inquiry also stated that even if the Immigration Act did allow for such preference, the Immigration Act would still be subordinate to the Human Rights Act which does not allow for discrimination in a promotions process.”Mr Doughty said that the ruling also served a warning to employers who tried to punish staff — by way of demotion or dismissal — who may have notified the Human Rights Commission of a potential complaint.“Another key point also recognised by the Board of Inquiry is that a single employee can be unlawfully discriminated against on the basis of a particular characteristic even if other coworkers, who share that characteristic, are not discriminated against,” he said.“The Board of Inquiry also found that it is not necessary for a complainant to prove that there was an intention on the part of the employer to discriminate, only that the effect of the decision was discriminatory.”Mr Doughty added that the case also demonstrated that the Human Rights Act takes precedence over terms of employment and that an employer cannot use a contract to justify discrimination, even if an employee willingly signed that contract.“The ruling in Mr Harkin’s case is significant in several aspects and will likely serve as a precedent to be followed in future human rights hearings,” he said.“While the ruling of a Board of Inquiry is not, of itself, binding on other tribunals or the courts, there are certain key issues that were determined in this matter for the first time in Bermuda. For that reason this decision will likely be considered to have strong persuasive value that will guide future Human Rights Tribunals and possibly the courts when faced with similar issues.”
