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Case details

Royal Cayman Islands Police Association and others (Appellants) v Commissioner of the Royal Cayman Island Police Service and another (Respondents) (Cayman Islands)

Case ID: JCPC 2019/0103

Jurisdiction: Court of Appeal of the Cayman Islands

Case summary

Issue

This appeal concerns whether the Appellants were discriminated against unjustifiably on the ground of age because they were required to retire aged 55 whereas colleagues appointed after 22 November 2010 were not required to retire until aged 60. The three issues in this appeal are:

1. Did the discriminatory treatment of the Appellants on the grounds of age by requiring them to retire at the age of 55 fall within the ambit of section 9 of the Cayman Islands Constitution Order 2009, Part 1 of the Bill of Rights (such that there was an unjustified breach of section 16 of the Bill of Rights when read with section 9)?

2. Was the re-engagement policy a free-standing policy (such that its rigid application was a breach of section 19 of the Bill of Rights)?

3. Do the Third and Ninth Appellants have standing to challenge the re-engagement policy?

Facts

The Second to Ninth Appellants were all officers in the Royal Cayman Islands Police Service appointed before 22 November 2010. Before 22 November 2010, police officers below the rank of Chief Inspector ("non-gazetted officers") were automatically retired at the age of 55 under section 20 of the Police Law (2006 Revision). Alternatively, they could choose to be re-engaged but only at the rank of Constable and subject to the Commissioner's refusal (the "re-engagement policy").

On 22 November 2010, section 21 of the Police Law 2010 raised the retirement age to 60 for non-gazetted officers appointed after 22 November 2010 (which did not include the Appellants). The re-engagement policy continued to apply when the non-gazetted officer reached retirement age.

As a result of the law at the time, the Appellants were forced to retire aged 55 at a time when the retirement age for officers appointed after 22 November 2010 was aged 60.

The Appellants brought a claim before the Grand Court of the Cayman Islands for unlawful discrimination on the ground of age as well as nationality (the claim based on nationality is not appealed to the Judicial Committee of the Privy Council). The claim relies on various sections of the Cayman Islands Bill of Rights (Schedule 2 Part 1 of the Cayman Islands Constitution Order 2009).

The Grand Court and the Court of Appeal dismissed the Appellants' claim. On the first issue, the Court of Appeal held that compulsory retirement on the grounds of age was not enough to trigger section 9 as the Appellants did not suffer any particular and serious individual consequences from it. As section 9 was not engaged, the gateway to section 16 was not opened but had section 9 been engaged, the Court of Appeal would have decided that the difference in the retirement age was not justified under section 16. On the second issue, the Court of Appeal held that the re-engagement policy should be considered as part of the retirement policy and therefore could not be challenged as a free-standing policy (but if it had been free-standing, its rigid application was in breach of section 19). On issue three, the Court of Appeal did not need to consider standing but said that if it had, it would have concluded that the Third and Ninth Appellants did not have standing under section 26 as they were not directly affected by the re-engagement policy. The Appellants now appeal to the Judicial Committee of the Privy Council.

Section 9 of the Bill of Rights includes: "(1) Government shall respect every person’s private and family life, his or her home and his or her private correspondence. […] (3) Nothing in any law or done under its authority shall be held to contravene this section to the extent that it is reasonably justifiable in a democratic society […]".

Section 16 of the Bill of Rights includes: "(1) Subject to subsections (3), (4), (5) and (6), government shall not treat any person in a discriminatory manner in respect of the rights under this part of the Constitution. (2) In this section, "discriminatory" means affording different and unjustifiable treatment to different persons on any ground such as […] age […]. (3) No law or decision of any public official shall contravene this section if it has an objective and reasonable justification and is reasonably proportionate to its aim in the interests of defence, public safety, public order, public morality or public health."

Section 19 of the Bill of Rights includes: "(1) All decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair."

Section 26 of the Bill of Rights includes: "(1) Any person may apply to the Grand Court to claim that government has breached or threatened his or her rights and freedoms under the Bill of Rights and the Grand Court shall determine such an application fairly and within a reasonable time."

Parties

Appellant(s)

Royal Cayman Islands Police Association and others

Respondent(s)

Royal Cayman Island Police Service and another

Appeal

Justices

Lord Briggs, Lady Arden, Lord Kitchin, Lord Stephens, Lady Rose

Hearing start date

19 May 2021

Hearing finish date

19 May 2021

Watch hearing
19 May 2021 Morning session Afternoon session