An alleged discriminatory policy of the Bermuda Dental Board that prevented a British dentist taking up work on the Island has now reached the Court of Appeal five years after it was applied.

Scottish dentist David Thompson has no intention of returning to the Island to work having long ago accepted the multiple hurdles preventing him doing so would take too long to resolve.

But the legal wrangle sparked in 2001 remains active and three high-ranking judges sitting in Bermuda have now been asked to rule on whether the Bermuda Dental Board has a discriminatory regulation at odds with the Human Rights Act.

The saga began when Dr. David Dyer advertised locally for a dentist and, unable to find an applicant on the Island, broadened his search to overseas. It was then that Dr. Thompson applied and was accepted.

He was granted a work permit and arrived on the Island only to discover he would not be allowed to practise as a dentist in Bermuda without first passing the Dental Board’s qualifying exam.

But the Board barred him sitting the exam because it was only open to persons with Bermudian status or their spouses.

Then Health Minister Nelson Bascome intervened forcing the Board to allow Dr. Thompson to take the exam. The dentist failed the exam and was not allowed to re-sit it.

Dr. Thompson took the matter to a Judicial Review which ruled the examining committee had shown bias against him and been unfair, inconsistent and irrational in evaluating his exam performance.

However, by this stage Dr. Thompson’s work permit had expired and was not renewed so he was unable to re-sit the exam.

Although the Scottish dentist has no desire now to work in Bermuda the legal wrangle over the case has been tested at the Supreme Court, most recently at the start of this year when Judge Charles-Etta Simmons found the Dental Board’s decision to bar those without Bermudian status or having spouses with Bermudian status from sitting the qualifying exam was not a breach of the Human Rights Act 1981.

But at the Court of Appeal, lawyer David Kessaram argued the Dental Board was operating a rule that legally discriminated against a person based on their “place of origin” which is categorically outlawed by the Human Rights Act.

“The issue we are concerned with is whether the Supreme Court was right in deciding that place of origin discrimination did not include Bermudian status versus non-Bermudian discrimination,” said Mr. Kessaram.

If his argument sways the three Court of Appeal Judges the matter would go back to the Human Rights Commission. It would achieve a point of principle in law and open the way for a likely compensation claim.

Mr. Kessaram said because of the small size of Bermuda it was understandable that the Government has the power to say who is allowed to come to the Island to work, but he added: “It is not permissible for the Dental Board to say ‘Ah, we have a policy that you are not allowed to practice dentistry here’.”

Replying for the Bermuda Dental Board the legal team of Russell Zinn and Melvin Douglas argued the Supreme Court Judge was right in deciding “place of origin” discrimination is not the same sentiment as a bar on those without Bermuda status or spouses with Bermudian status.

Mr. Zinn said Bermudian status was not tied to being born in Bermuda because someone could be born overseas but have Bermudian status through their parents.

He said a person’s “place of origin”, which he argued referred to the geographical place where they were born, was a different concept to Bermudian status.

He said: “If the Dental Board rule was that it will not register anyone who was not born in Bermuda then Mr. Thompson might have an argument, but that is not what it is saying.”

Court of Appeal President Justice Edward Zacca and Justices Sir Anthony Evans and Sir Charles Mantell have reserved judgement on the case until a later date.