Sahatoo v The Attorney General of Trinidad and Tobago

Under section 4(d) of the Constitution of Trinidad and Tobago, situations must be comparable, analogous or broadly similar before a public authority must explain different treatment. A difference is justified where it pursues a legitimate aim and is proportionate to that aim.

Relevant practical experience gained through temporary public-service appointments may justify treating candidates differently from the order in which they appear on a merit list. Misinformation that temporary service will not improve prospects does not establish unlawful unequal treatment unless the later preferment resulted from experience acquired after that misinformation.

The appellant was placed sixth on an order of merit list for appointment as a Road Officer I. Ten candidates ranked below him received permanent appointments first because they had accepted temporary appointments and gained relevant experience.

The first-instance judge dismissed his constitutional claim. The Court of Appeal accepted that the candidates were broadly similarly situated but held that their practical experience justified the different treatment. Before the Privy Council, the appellant also sought to raise a new argument based on regulation 12(1) of the Public Service Commission Regulations. The central issues were whether the experience justified the difference in treatment and whether the new statutory and public-law arguments should be admitted.

1. Appeal dismissed. The Privy Council upheld the Court of Appeal’s conclusion that the appellant’s ten comparators had acquired sufficient practical experience to justify their earlier permanent appointments.
2. The Board reaffirmed the structured approach to section 4(d) stated in Webster v Attorney General of Trinidad and Tobago [2015] UKPC 10; [2015] ICR 1048. The situations must be comparable, analogous or broadly similar. Any difference must be material. Once broad comparability is established, the public authority must explain and justify the difference by reference to a legitimate aim and a proportionate relationship between means and aim. The Board declined to reconsider that framework, noting that the Commission accepted sufficient comparability in this appeal.
3. The appellant’s new argument based on regulation 12(1) of the Public Service Commission Regulations was not admitted. Applying the usual practice stated in Baker v The Queen [1975] AC 774, 788, the Board held that this was not an exceptional case warranting a new point of law on appeal. The argument depended on matters on which the local courts’ views and further evidence would have assisted. It was also, in substance, a public-law challenge to appointment decisions which should have been brought by judicial review, and the time for doing so had expired.
4. On the substantive equality claim, the appellant had been offered temporary appointment but chose to wait for permanent employment. His comparators accepted temporary appointments and thereby gained relevant experience. The assurances given in 1990 and 1992—that temporary service would not improve prospects and that permanent appointments depended solely on the merit list—were incorrect. However, the evidence showed that the comparators had acquired the relevant experience before the first assurance. Their preferment therefore did not result from the misinformation. Their prior experience was a sufficient material difference to justify the treatment complained of.

• Privy Council: dismissed the appeal: [2019] UKPC 19.
• Court of Appeal of the Republic of Trinidad and Tobago: dismissed the appeal, holding that the comparators’ practical experience justified their earlier permanent appointments.
• First instance: Dean-Armorer J dismissed the constitutional application under section 14 of the Constitution of Trinidad and Tobago.