Royal Cayman Islands Police Association and Others v Commissioners of the Royal Cayman Islands Police Service and another (Cayman Islands)
| Jurisdiction | UK Non-devolved |
| Judge | (Lord Briggs, Lady Arden, Lord Kitchin, Lord Stephens and Lady Rose) |
| Judgment Date | 26 July 2021 |
| Neutral Citation | [2021] UKPC 21 |
| Court | Privy Council |
2021 May 19; July 26
Discrimination - Age - Employment - Mandatory retirement age of 55 for police officers engaged before certain date - Higher retirement age for those engaged later - Power to re-engage retired officers - Police Commissioner adopting policy of only re-engaging at rank of constable regardless of previous rank - Whether mandatory retirement age of 55 discriminatory - Whether re-engagement policy rational -
Police officers in the Royal Cayman Islands Police Service, who were below the rank of chief inspector and in service on or before 22 November 2010, were subject to a mandatory retirement age of 55. The mandatory retirement age for those appointed after that date was 60. However, the Police Commissioner had power to re-engage officers who were subject to mandatory retirement. In exercising that power, the Commissioner adopted a policy that officers would only be re-engaged at the rank of constable, regardless of their previous rank and the needs of the police service. The plaintiffs, an association representing police officers and certain individual officers who had been subject to mandatory retirement at 55 but had wished to continue in service, some of whom had accepted re-engagement at the rank of constable and some of whom had not, commenced proceedings against the Commissioner and the Attorney General of the Cayman Islands. They claimed that the continued application of a mandatory retirement age of 55 to officers in service on 22 November 2010, but not to officers engaged after that date, amounted to discrimination on the ground of age, in reliance on the non-discrimination provision in section 16 of the Cayman Islands ConstitutionF1 read with the right to private life in section 9 of the Constitution, which were the equivalents to, respectively, articles 14 and 8 of the Convention for the Protection of Human Rights and Fundamental FreedomsF2. They also claimed that the Commissioner’s re-engagement policy was irrational and thus in breach of section 19(1) of the Constitution. The judge of the Grand Court of the Cayman Islands rejected the plaintiff’s claims on the basis that the issue of the mandatory retirement policy did not fall within the ambit of the right to private life under section 9 of the Constitution, so that the prohibition on age discrimination under section 16 did not apply, and that the policy on re-engagement was not irrational in breach of section 19(1) because there had been one exception in which an officer had been engaged at a rank above constable. In addition, the judge held that two of the individual police officers did not have standing to challenge the policy, given that they had not applied to be re-engaged. The Court of Appeal of the Cayman Islands upheld the judge’s decision, agreeing with her conclusions on the mandatory retirement age and concluding that the re-engagement policy, when considered as an ameliorative adjunct to the mandatory retirement policy, was not irrational.
On the plaintiffs’ appeal—
Held, allowing the appeal in part, (1) that whether the claim came within the ambit of the right to private life, as protected by section 9 of the Constitution, had to be determined by a value judgment as to the proximity between the facts at issue and the core values engaged in respect of an employment-related dispute between an individual and the state, and the linkage had to be more than tenuous; that age was different from other personal characteristics, such as gender, sexual orientation and race, which had a history of stigmatisation, stereotyping and social exclusion; that, in particular, a mandatory retirement age was an ordinary incident of modern life, which was far removed from the core values in relation to employment-related disputes which section 9 was intended to protect; and that, accordingly, mandatory retirement did not fall within the ambit of section 9 and, therefore, the non-discriminatory provisions of section 16 of the Constitution had no application, when read in conjunction with section 9 (post, paras 58–61, 87, 89, 92, 99–100, 108).
(2) But that, whilst the Commissioner’s re-engagement policy was linked to the mandatory retirement policy and designed with the best intentions to ameliorate its effects, a blanket policy imposed irrespective of the circumstances of the individual officers or the needs of the police service was irrational; that, since the individual police officers who had not applied for re-engagement would have done so if they could have been offered re-engagement at a rank higher than constable, they were affected by the re-engagement policy and had standing to bring a claim; and that, accordingly, the claims of the individual police officers would be remitted to the Grand Court for reconsideration on the facts of their respective cases (post, paras 102–103, 105, 107–108).
The following cases are referred to in the judgment of the Board:
Adami v Malta (Application No 17209/02) (
Boyraz v Turkey (Application No 61960/08) (
British Gurkha Welfare Society v United Kingdom (Application No 44818/11) (
Denisov v Ukraine (Application No 76639/11) (unreported) 25 September 2018,
JB v Hungary (Application No 45434/12) (unreported) 20 December 2018,
M v Secretary of State for Work and Pensions
McLaughlin, In re
National Union of Belgian Police v Belgium (Application No 4464/70) (
Novaković v Croatia (Application No 73544/14) [
Özpinar v Turkey (Application No 20999/04) (unreported) 19 October 2010,
Petrovic v Austria (Application No 20458/92) (
Pretty v United Kingdom (Application No 2346/02) (
R (Carson) v Secretary of State for Work and Pensions
R (Clift) v Secretary of State for the Home Department
R (Steinfeld) v Secretary of State for Education
Schmidt v Sweden (Application No 5589/72) (
Schwizgebel v Switzerland (Application No 25762/07) Reports of Judgments and Decisions, 2010-V, p 29,
Seldon v Clarkson Wright & Jakes
Smith v Lancashire Teaching Hospitals NHS Foundation Trust
Smith v United Kingdom (Application Nos 33985/96 and 33986/96) (
Sodan v Turkey (Application No 18650/05) (unreported) 2 February 2016,
The following additional cases were cited in argument:
Ghaidan v Godin-Mendoza
IB v Greece (Application No 552/10) (unreported) 3 October 2013,
Martínez v Spain (Application No 56030/07) (
Massachusetts Board of Retirement v Murgia (
Matadeen v Pointu [
R v Ministry of Defence, Ex p Smith [
R (C) v Secretary of State for Work and Pensions
Sidabras v Lithuania (Application No 55480/00) (
Volkov v Ukraine (Application No 21722/11) (
Wandsworth London Borough Council v Vining
APPEAL from the Court of Appeal of the Cayman Islands
The plaintiffs, the Royal Cayman Islands Police Association, an incorporated association representing officers who served in the Royal Cayman Islands Police Service, and, inter alios, Dane Pinnock, Claire Pinnock Jackson, Clive Smith, Leslie Franklin, Antonio Lopez Jackson, Clesford Lumsden, Howard Campbell and Hugh Cotterall, who all had been or were officers serving in that police service, brought an action against the defendants, the Commissioner of the Royal Cayman Islands Police Service and the Attorney General of the Cayman Islands, challenging the former mandatory retirement age of 55 for non-gazetted police officers in the Royal Cayman Islands Police Service and the re-engagement policy for such retired officers utilised by the first defendant. Hall J (Ag) sitting in the Grand Court of the Cayman Islands dismissed the claims on 15 March 2018 and the Court of Appeal of the Cayman Islands (Rix, Martin and Moses JJA) upheld her decision on 6 February 2019. Pursuant to leave granted by the Court of Appeal (Field, Morrison and Beatson JJA) on 20 August 2019, the plaintiffs appealed to the Judicial Committee of the Privy Council.
The facts are stated in the judgment of Lord Stephens JSC, post, paras 9–28.
Jeffrey Jupp, James Robottom and Guy Dilliway-Parry (instructed by
David Perry QC, Katherine Hardcastle, Reshma Sharma and Claire Allen (instructed by
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