Court rulings have employment ramifications
Parliaments make laws and courts interpret them. Recently, the Supreme Court has been very active in interpreting laws, spurred by a number of different cases, and may be pushing ahead of the legislators in some controversial areas.
These rulings, few of which seem likely to be appealed, have ramifications for the community generally and for employment more specifically.
The most recent example of this was November's declaration that people in long term same-sex partnerships with Bermudians should have the same rights to reside and seek employment as spouses of Bermudians.
This decision, which has the effect of putting stable same-sex relationships on the same footing as marriages (and would likely apply to stable relationships between men and women as well), was a step Parliament seemed to be unwilling to take, despite growing pressure and increasing recognition of same-sex marriage in other countries.
Chief Justice Ian Kawaley made the ruling because of two pieces of legislation and one policy change.
The first was the “two words and a comma” amendment to the Human Rights Act banning discrimination on the basis of sexual orientation, which came into effect in 2013. While that decision was mainly viewed as preventing discrimination for things like housing and employment, it was followed this year by changes to the Work Permit Policy which recognised partners of non-Bermudian work permit holders as dependents. This enabled a work permit holder to come to the Island with their partner provided they could financially support them. Significantly, the policy did not make a distinction between different-sex partners and same-sex partners.
However, while immigration legislation allowed spouses of Bermudians to work in Bermuda without requiring a work permit, a non-Bermudian and Bermudian in a same-sex partnership, no matter how long they had been together, did not enjoy the same right — the non-Bermudian partner had to get a work permit, with all the uncertainty that entailed.
Then, earlier this year, Dr Kawaley's colleague, Puisne Judge Stephen Hellman, ruled that there was direct discrimination on the grounds of marital status, in that two unmarried people were unable to jointly adopt a child.
The court then found in addition that there was indirect discrimination on the grounds of sexual orientation, as same-sex marriage is not recognised. So a same-sex couple has no means of accessing adoption services.
Thus, the fact that Bermuda bars discrimination on the basis of sexual orientation but does not recognise same-sex marriage means that a same-sex couple is being discriminated against on the basis of their sexual orientation.
Last month, Dr Kawaley applied the same principle to same-sex couples where one partner was Bermudian and the other was not. Because they were unable to marry, unlike opposite-sex couples, they could not benefit from the rights applied to spouses of Bermudians. As such, they were being discriminated against and were entitled to relief, the argument lawyer Peter Sanderson had made.
This principle has far-reaching ramifications across a range of issues. In employment terms, it means that generally non-Bermudian partners of Bermudians, regardless of sexual orientation, may not require work permits in the future.
Taken further, it may also mean that unmarried couples in long-term, stable relationships likely have the same rights as married people.
As Home Affairs Minister Michael Fahy said: “The Chief Justice has spoken of stable partnerships. As such, this policy will too need to be revisited.
“The Ministry must also now address the differential treatment that arises by way of this declaration as between same-sex couples who are unmarried and opposite-sex couples who are unmarried.
“The declaration appears to suggest that an opposite-sex couple that are in a stable relationship would potentially still require a work permit. That is an issue which is still under active review.”
It can be argued that it would be unfair to opposite-sex couples to be denied the rights being conferred on same-sex couples, even though opposite-sex couples can choose to marry where same-sex couples cannot.
It is no surprise then that Government has asked for time to work out the ramifications, and it would be no surprise either if an opposite-sex couple sought the same rights as same-sex couples. Government had asked for a year, but Dr Kawaley had given until the end of February, so expect the lights to be burning late in Government offices this Christmas.
Of course, if Parliament made same-sex marriages legal, this would cut through some of the legal tangles — but it may be that legislators, fearful of being caught in the crossfire, would prefer to leave the whole issue to the courts.
Another area of immigration law has also been “disrupted” by the courts recently — in this case, over whether Bermudians and non-Bermudians have the same rights to be promoted.
The case stems from the case of former Bermuda Police constable Michael Harkin, who claimed he was passed over for promotion, and when he complained, was forced to leave Bermuda when his work permit was not renewed.
Without getting into the details of the case, the Supreme Court found that Mr Harkin had been discriminated against, and according to his lawyer, Allan Doughty: “The decision confirms that where a contract of any worker in Bermuda has not been renewed, for a discriminatory reason, the non-renewal may form the basis of a Human Rights complaint.
“Chief Justice Kawaley also confirmed that while the Human Rights Act does allow for preference to be granted to Bermudians within the employment context, the preference is confined to the hiring process.”
Thus, employers who do not renew a non-Bermudian's work permit, may have to show they were not discriminating against the employee when they do so. Further, the ruling suggests that when making promotions, employers must treat Bermudians and non-Bermudians equally, and make the promotion purely on the basis of merit, and without regard to nationality.
This comes after a change in the Immigration policy earlier this year that made promotion of non-Bermudians easier. As is often the case, these decisions may require further appeals and policy setting. But employers and employees who are uncertain of where they stand would be wise to get advice.
Bill Zuill is a director of Bermuda Executive Services Ltd, which was recently named as Bermuda's Best Employment Agency for 2015 by The Bermudian Magazine. This column and others can be found at www.bermudaemployment.com