Thompson v Bermuda Dental Board (Human Rights Commissioners intervening)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Neuberger of Abbotsbury |
| Judgment Date | 09 June 2008 |
| Neutral Citation | [2008] UKPC 33 |
| Court | Privy Council |
| Docket Number | Appeal No 8 of 2007 |
| Date | 09 June 2008 |
[2008] UKPC 33
Present at the hearing:-
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Carswell
Lord Mance
Lord Neuberger of Abbotsbury
Privy Council
[Delivered by Lord Neuberger of Abbotsbury]
In order to practise in Bermuda, a dentist must register with the respondent, the Bermuda Dental Board, which has a policy of limiting registration to Bermudians or spouses of Bermudians. Consequent upon the policy, the respondent refused to register the application of the appellant, Dr David Thompson, a citizen of the United Kingdom, to practise as a dentist in Bermuda. The question raised on this appeal is whether Dr Thompson has thereby been subjected to direct or indirect discrimination contrary to the provisions of the Bermudian Human Rights Act 1981 as amended ("the 1981 Act").
The factual background
The present appeal arises as a result of an agreed preliminary issue. Accordingly the factual basis for Dr Thompson's complaint is assumed to be correct, but has yet to be established, although there appears, at any rate at first sight, to be much in the point made on behalf of Dr Thompson that its seems unlikely that the assumed facts will transpire to be incorrect.
Dr Thompson was born in the United Kingdom, where he trained and qualified as a dentist. In February 2001, the Department of Immigration granted him a work permit, which entitled him to be employed as a dentist in the practice of a Dr David Dyer in Bermuda. In order to practise as a dentist in Bermuda, Dr Thompson also needed to be registered with the respondent under the provisions of the Dental Practitioners Act 1950. He duly applied for registration, but his application was refused. This refusal was founded on the respondent's long established policy to accept applications for registration only from Bermudians or the spouses of Bermudians.
In this connection, as Bermuda is a British overseas territory, there is no Bermudian nationality as such. The concept of a Bermudian has therefore to be understood by reference to the provisions of the Bermuda Immigration and Protection Act 1956, in particular sections 16 to 22. As Evans JA helpfully explained in para 8 of the judgment in the Court of Appeal in this case, there are five main categories of "Bermudian status', namely:
"(i) Birth – whether in or outside Bermuda, if the parents were domiciled in Bermuda and at least one parent possessed Bermudian status at the time of the birth…, or as the child of a person who has Bermudian status, wherever born, but only until the age of 22 years…;
(ii) Long term residence in Bermuda – by grant from the Minister, if qualified by residence in Bermuda for at least ten years, and with a 'qualifying Bermudian connection'..;
(iii) Domicile – a transitional provision …;
(iv) Spouses of persons having Bermudian status, coupled with a residence requirement, and by grant from the Minister;
(v) By grant from the Minister in certain other cases, with residence, birth and parentage requirements…."
As a result of the application of the respondent's policy, Dr Thompson was therefore initially not permitted by the respondent to sit the examinations required for registration as a dentist in Bermuda. However, the Ministry of Health then intervened and prevailed upon the respondent to permit Dr Thompson to take the examinations. He passed the theory examination; however, he failed the practical examination, and the respondent refused him permission to resit. The Supreme Court then quashed the decision to fail him on the practical examination, on the grounds of apparent bias and internal inconsistency. Thereafter, Dr Thompson's attempts to arrange to resit the practical examination were delayed until his work permit expired in February 2002. Despite his requests, the work permit was not thereafter renewed.
The present appeal originates from Dr Thompson's complaint to the Human Rights Commission ("the Commission") that the actions of the respondent in (a) initially refusing to permit him to sit the examination, (b) failing him in the practical examination, and (c) refusing to let him resit the practical examination constituted acts of unlawful discrimination against him contrary to the 1981 Act. A Board of Inquiry set up by the Commission determined that all three aspects of the complaints were well founded, in that there had been unlawful discrimination against Dr Thompson pursuant to sections 2(2) and 5 of the 1981 Act on grounds of Dr Thompson's "place of origin".
The respondent appealed against that determination to the Supreme Court, and, on 21 February 2006, Simmons J allowed the appeal, holding that there had been no unlawful discrimination, whether direct or indirect, against Dr Thompson. Dr Thompson appealed, and for reasons given by Evans JA, in a judgment with which Zacca P and Mantell JA agreed, the Court of Appeal upheld the decision of the Judge, and the appeal was consequently dismissed on 10 November 2006. In his present appeal, Dr Thompson maintains his case that the respondent has been guilty of unlawful direct or indirect discrimination by implementing its policy in favour of Bermudians (or those married to Bermudians) against him.
The Human Rights Act 1981
The 1981 Act starts with a preamble which includes the statements that "the European Convention on Human Rights applies to Bermuda", and that "the Constitution of Bermuda enshrines the fundamental rights and freedoms of every person whatever his race, place of origin, political opinions, colour, creed or sex…".
Part II of the 1981 Act is headed "Unlawful Discrimination" and it contains the various types of discrimination which are prohibited. Thus, sections 3, 4 and 4A prohibit discrimination respectively in respect of "notices', "disposal of premises', and "against Bermudians in disposal of premises'.
Section 5, which is of central relevance in the present appeal, is concerned with "Provision of goods, facilities and services'. Section 5(1) provides that:
"No person shall discriminate against any other person in any of the ways set out in section 2(2) in the supply of any goods, facilities or services … by refusing … to provide him with any of them … in the like manner … in and on which the former normally makes them available to other members of the public."
Section 5(2) specifically provides that the "facilities and services referred to" include (but are not limited to) various facilities and services, in particular for present purposes "the services of any business, profession or trade or local or other public authority". Section 5(4) provides:
"For the avoidance of doubt, it is hereby declared that nothing in this section shall be deemed to prevent the giving of preference to a Bermudian in respect of particular facilities by way of banking or for grants of loans, credit or finance."
Section 6 precludes discrimination "in any of the ways set out in section 2(2)" by employers, subject to exceptions. One of those exceptions is in subsection (9), which, "[f]or the avoidance of doubt", permits "preference to the employment of a Bermudian", and also permits "the nationality of any person" to be taken into account where "national security" is involved. Section 6A contains what is effectively a further exception, in that it empowers the Commission to approve "special programmes' for certain purposes. Those purposes are set out in section 6A(1), which specified, prior to its amendment in 2000, (a) "to relieve hardship" and "to assist disadvantaged persons or groups', and (b) "to increase the employment of members of a group…because of the race, colour, nationality or place of origin of the members of the group".
Section 2 of the 1981 Act is concerned with interpretation. It is necessary to set out section 2(2), which is referred to in section 5(1), in full. Paragraph (a) is concerned with direct discrimination, and paragraph (b) with indirect discrimination; section 2(2), prior to its amendment in 2000, provided as follows:
"For the purposes of this Act a person shall be deemed to discriminate against another person—
(a) if he treats him less favourably than he treats or would treat other persons generally or refuses or deliberately omits to enter into any contract or arrangement with him on the like terms and the like circumstances as in the case of other persons generally or deliberately treats him differently to other persons because—
(i) of his race, place of origin, colour, or ancestry;
(ii) of his sex;
(iii) of his marital status;
(iv) he was not born in lawful wedlock;
(v) she has or is likely to have a child whether born in lawful wedlock or not; or
(vi) of his religious beliefs or political opinions;
(b) if he applies to that other person a condition which he applies or would apply equally to other persons generally but—
(i) which is such that the proportion of persons of the same race, place of origin, colour, ancestry, sex, marital status, disability, religious beliefs, or political opinions as that other who can comply with it is considerably smaller than the proportion of persons not of that description who can do so; and
(ii) which he cannot show to be justifiable irrespective of the race, place of origin, colour, ancestry, sex, marital status, disability, religious belief or political opinions of the person to whom it is applied; and
(iii) which operates to the detriment of that other person because he cannot comply with it.
It is also necessary to refer to two definitions in section 2(1) of the 1981 Act, namely:
""Bermudian" means a person having a connection with Bermuda recognized by the law relating to Immigration for the time being in force;….
"the Community" means all persons...
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