A British dentist who was thwarted in his attempt to work in Bermuda was unlawfully discriminated against for not being Bermudian, the Island's highest court of appeal has ruled.

The landmark decision by the Privy Council has been hailed by the Human Rights Commission (HRC) as being of wider significance — because it overruled decisions of the lower courts that possession or otherwise of Bermudian status does not afford protection under the Human Rights Act (HRA).

According to Venous Memari, chair of the HRC, it thus also gave the green light for locals to pursue complaints that being Bermudian has caused them unfair treatment in the workplace.

However, the case does not mean the Department of Immigration will have to change its rules — it will still be allowed to designate some jobs as "Bermudian only" in order to protect employment opportunities.

For Dr. David Thompson, the Privy Council ruling was the culmination of seven years of legal wrangling.

According to papers in the case, it was sparked by the fact that in order to practice in Bermuda, a dentist must register with the Bermuda Dental Board, which has a policy of limiting registration to Bermudians or spouses of Bermudians.

Dr. Thompson argued during the course of various court hearings that this amounted to discrimination against him because he is not Bermudian, breaching the Human Rights Act.

The dentist was granted a work permit in February 2001 by the Department of Immigration to work for the practice of Dr. David Dyer.

However, when he applied for registration with the Dental Board, it refused to let him sit the exams needed for registration due to its policy.

Amid complaints that there were not enough local dentists to satisfy demand, the Ministry of Health intervened and told the Dental Board to allow Dr. Thompson to sit his exams — but he failed the practical and was refused permission by the board to resit it.

The Supreme Court subsequently quashed that decision on grounds of apparent bias — but Dr. Thompson's attempts to arrange the resit were delayed until his work permit expired in February 2002.

Dr. Thompson complained about the Dental Board's conduct to the HRC on the grounds of unlawful discrimination against him based on his "place of origin". A Board of Inquiry set up by the HRC determined that there had indeed been unlawful discrimination.

The Dental Board, however, got the HRC's determination overturned by the Supreme Court.

Although Dr. Thompson appealed, the Court of Appeal also ruled against him.

The Court of Appeal stated that possessing Bermudian status — by birth or acquisition — is not a protected ground under the HRA's provisions covering national origins or place of origin.

Therefore, Dr. Thompson's complaint that he suffered discrimination for not being Bermudian was rejected.

However, the dentist fought on, taking his case to the Privy Council, which heard it last month.

In their ruling on the matter this week, the five judges making up the council disagreed with the lower courts.

They stated that discriminating against someone because he or she is not Bermudian is indeed discrimination on the grounds of place or origin or national origins under the Human Rights Act.

According to Ms Memari, the HRC applied to intervene as an interested party in the Privy Council proceedings because it had received complaints from Bermudians that they were being discriminated against at work because they were Bermudian.

The HRC could not investigate them because being Bermudian was not deemed by the Court of Appeal to be a ground for protection.

Ms Memari said that while it was not concerned with the factual dispute between Dr. Thompson and the Bermuda Dental Board, it was interested in the wider implications of the Court of Appeal's interpretation of "place of origin," "national origins" and "Bermudian status".

The HRC argued during the Privy Council hearing that anyone lawfully residing in Bermuda is entitled to protection from discrimination under the Human Rights Act.

It further argued that in prohibiting discrimination on grounds of place of origin and national origins, Parliament did not intend to create a distinction between born Bermudians, status Bermudians and non-Bermudians.

Ms Memari therefore welcomed the ruling by the Privy Council, telling The Royal Gazette: "The HRC can now entertain complaints by the Bermudian complainants who have alleged that they have suffered discrimination.

"We had to put several complaints on hold because according to the Court of Appeal, Bermudian status was not a protected ground under the Act."

However, she explained that employers are still allowed under the Human Rights Act to give preference to Bermudians in order to protect employment opportunities for them.

In its ruling, the Privy Council said Dr. Thompson can now go back to the Board of Inquiry set up by the Human Rights Commission to press his case again.

It is unclear whether or not he will do so, as neither he nor his lawyer, David Kessaram, could be reached yesterday for comment.

The dentist has, however, indicated in the past that he fought the legal battle on a point of principal rather than any lingering desire to work in Bermuda.

The Privy Council ordered the Bermuda Dental Board to pay his costs for the Supreme Court, Court of Appeal and Privy Council hearings although the sum was not specified in the written judgment.

The HRC accepted that it should bear its own costs.

Richard Cann, chairman of the Bermuda Dental Board, said yesterday that he had not yet perused the ruling, and would defer comment until he had.