Royal Cayman Islands Police Association and others v Commissioners of the Royal Cayman Islands Police Service and another (Cayman Islands)

For discrimination under section 16 of the Cayman Islands Constitution, the facts must fall within the ambit of a substantive right. That requires a value judgment about the proximity of the facts to the right’s core values or interests. A merely tenuous connection is insufficient.

In an employment dispute, mandatory retirement based on age alone does not engage the reason-based approach to private life. Consequences must be very serious and affect private life to a very significant degree. A re-engagement policy remains subject to constitutional rationality even when intended to ameliorate mandatory retirement. A blanket policy cannot be saved by its beneficial purpose, and persons directly affected by it have standing to challenge it.

Non-gazetted police officers appointed before 22 November 2010 were required to retire at 55, while later appointees retired at 60. The Commissioner could re-engage retired officers, but an unwritten policy generally required re-engagement at constable rank.

The individual officers claimed age discrimination under sections 16 and 9 of the Cayman Islands Constitution, and challenged the re-engagement policy under section 19(1). The Grand Court dismissed the claims. The Court of Appeal upheld that decision, holding that mandatory retirement was outside section 9’s ambit and that the re-engagement policy’s ameliorative purpose prevented it being irrational.

The appeal concerned the ambit of section 9, the rationality of the re-engagement policy, and the standing of officers who had not applied for re-engagement.

1. Ambit and age discrimination. The appeal on the section 16 age-discrimination claim was dismissed. Section 16 is complementary to substantive constitutional rights and cannot apply unless the facts fall within the ambit of section 9. Ambit requires a value judgment as to the proximity between the facts and the core values or interests protected by the substantive right. The connection must be more than tenuous. A substantive breach is unnecessary, but the core values remain relevant.
2. In employment-related disputes between an individual and the State, private-life issues ordinarily arise through either the reason-based approach or the consequence-based approach identified in Denisov v Ukraine No 76639/11. The reason-based approach requires the underlying reason for the measure to be sufficiently linked to private life. The consequence-based approach requires consequences that are very serious and affect private life to a very significant degree. The assessment considers the claimant’s inner circle, relationships, and social and professional reputation, comparing life before and after the measure and testing subjective perceptions against objective circumstances.
3. Mandatory retirement on age grounds alone was insufficient under the reason-based approach. Age was not equivalent to gender or sexual orientation and did not carry the same history of stigmatisation, stereotyping and social exclusion. Under the consequence-based approach, the officers had not established the required threshold: the financial impact was not quantified, relationships and reputations were largely unaffected, and the consequences were limited. The facts therefore fell outside the ambit of section 9 and section 16 had no application.
4. Re-engagement policy. The appeals under section 19(1) were allowed. The Board agreed that the policy was inextricably linked to mandatory retirement and intended to ameliorate its effects, but held that this could not cure its irrationality. Constitutional rationality applied regardless of the policy’s beneficial purpose. A blanket policy applied without regard to individual qualities or the needs of the police service was irrational.
5. Standing and disposal. The third plaintiff had standing because she wished to remain in service and would have applied under a rational and flexible policy. The eleventh plaintiff also had standing on the agreed basis that the third plaintiff’s evidence represented the remaining officers. The relevant claims of the second, third, fifth, sixth, eighth, ninth, tenth and eleventh plaintiffs were remitted to the Grand Court for reconsideration. Further evidence concerning individual abilities and police-service needs was permitted.

1. Grand Court of the Cayman Islands: On 15 March 2018, dismissed the individual officers’ claims concerning age discrimination and the re-engagement policy.
2. Court of Appeal of the Cayman Islands: On 6 February 2019, dismissed the appeals. It held that mandatory retirement was outside section 9’s ambit and upheld dismissal of the re-engagement claims.
3. Privy Council: Dismissed the appeal on the ambit issue, but allowed the appeals concerning rationality and standing, remitting the relevant claims to the Grand Court.