Annissa Webster and others v The Attorney General of Trinidad and Tobago

The right to equality of treatment from a public authority requires a structured comparison. The claimant must show situations that are comparable, analogous or broadly similar and differential treatment. The public authority must then justify the difference by a legitimate aim and a reasonable relationship of proportionality between the means and that aim. The situations need not be identical, and proof of mala fides is not ordinarily required. In employment cases, the principal comparison is the work actually performed, rather than the statutory regime, entry qualifications or historic training. An appellate court will ordinarily not reopen concurrent factual findings where the evidence was tested below and a retrial would give the claimant a second opportunity.

The appellants were present and former special reserve police officers who claimed unequal treatment compared with regular police officers. Their complaints concerned pay, benefits, pension arrangements and employment conditions before and after a Cabinet decision to absorb many special reserve officers into the regular police force.

The constitutional motion was brought under section 4(d) of the Constitution of Trinidad and Tobago. Moosai J held that the two groups were not true comparators and found that special reserve officers generally performed duties of lesser responsibility. The Court of Appeal upheld that conclusion. The central issues before the Board were the proper test for equality of treatment by a public authority, whether statutory differences, qualifications and training justified the treatment, and whether the concurrent factual findings should be reopened.

The appeals were dismissed. The Board declined to order a retrial or give the appellants a second opportunity to present evidence on the nature of their duties.

1. Applicable test. Section 4(d) requires comparison of situations that are comparable, analogous or broadly similar, although they need not be identical. Any difference must be material to the difference in treatment. Once broad comparability and differential treatment are shown, the public authority must justify the difference by demonstrating a legitimate aim and a reasonable relationship of proportionality between the means employed and that aim. Weighty reasons are required for differences based on race, origin, colour, religion or sex. Proof of mala fides is not ordinarily necessary. The Board considered the guidance in Bhagwandeen v Attorney General of Trinidad and Tobago [2004] UKPC 21, R (Carson) v Secretary of State for Work and Pensions [2006] AC 173, and the European Union authorities.
2. Statutory regimes, qualifications and training. The existence of different statutory schemes for special reserve and regular officers was not, without more, a conclusive answer to the section 4(d) claim. The scheme permitted special reserve officers to be used on a permanent, full-time basis, and the absorbed officers became subject to the regular police regime. Differences in entry qualifications, training, probation and examinations likewise could not by themselves justify substantial differences in terms and conditions. Their relevance depended on the work actually performed and the officers’ ability to perform it.
3. Comparator question. For employment terms and conditions, the principal criterion of sameness was whether the officers did the same work or work that was not materially different. The evidence was unsatisfactory, but the High Court and Court of Appeal had made concurrent findings that the special reserve officers performed duties of significantly lesser responsibility. The evidence had not been properly challenged by cross-examination.
4. Appellate restraint. The Board would not ordinarily go behind concurrent findings of fact. Although a properly directed and tested evidential case might conceivably have produced a different result, reopening the matter would require a complete retrial and would afford the appellants a second bite at the cherry.
5. Delay. The Board observed, conditionally, that constitutional relief is discretionary and delay is relevant even though there is no statutory time limit. The observations were unnecessary to the dismissal of the appeals.

1. Court of Appeal of the Republic of Trinidad and Tobago: upheld the High Court’s conclusion that the special reserve police officers performed duties of significantly lesser responsibility and were not appropriate comparators.
2. Privy Council: dismissed the appeals, declining to disturb the concurrent factual findings or order a retrial.