A man who claimed he was looked over for a Department of Planning job because of discrimination has had his case struck out in the Supreme Court.

Corey Brown launched a complaint to the Human Rights Commission arguing that while he had the experience and qualifications for the post, he was not shortlisted because of his race.

The HRC decided it would not pursue the complaint after communicating with the department in 2024, but Mr Brown applied to the Supreme Court for a judicial review.

In a judgment published online this week, Puisne Judge Andrew Martin dismissed the application after finding there was no evidence to support his allegations of discrimination.

He wrote: “Although the burden of proof of the allegation lies on the accuser, once an allegation of racial discrimination is made, the very fact of the accusation itself may have damaging consequences for the person accused.

“It is therefore particularly important that there is some objective factual evidence which supports the allegation.

“The only fact that Mr Brown relied upon from which such an inference could be drawn was that the interview panel was made up of two white women and two white men.

“It seems to the court that it is impossible to draw an inference of discrimination on grounds of race or ethnic origin from that fact alone, even though Mr Brown said it was ‘obvious’ to him.”

The judge added that the selection of candidates for interview was a joint undertaking involving the Department of Planning and the Department of Employee and Organisational Development.

He said: “It was not a function of the interview panel to select the candidates, although the Director of Planning had input into the selection.

“The composition of the interview panel cannot therefore relied upon as evidence of any alleged bias in the selection. The interview panel did not select the candidates.”

The court heard that Mr Brown is a qualified planner with a Master’s degree in architecture who moved to the island in 2005 to live with his wife.

Mr Brown worked at the planning department for two stints between 2005 and 2016, spending about ten years as a planner.

In 2021, he applied for the post of planner within the department and was not selected for an interview, but the post was not filled at that time.

He applied again in June 2023 when the position was re-advertised and was again not shortlisted or interviewed despite his qualifications and previous experience in the department.

The court heard that four candidates had been shortlisted and interviewed, with the post eventually going to an applicant who was not a Bermudian or the spouse of a Bermudian.

Mr Brown said in his complaint to the HRC that he subsequently met with workforce development who reached out to the department on his behalf and was told that “disparaging remarks” were made about his professional career.

He wrote: “Unbeknownst to me, I have been subjected to an unparalleled level of discrimination despite fulfilling the responsibilities in an above-satisfactory manner.

“The attached documents substantiate this and acknowledge the fact that I performed capably regardless of the treatment I was being subjected to. I always carried myself in a professional manner.

“In an e-mail from the director, it states that our working relationship is fine notwithstanding what she termed as my futile attempts to seek justice and lack of understanding as to why I would not achieve it.”

After the HRC received the complaint, members of the team reached out to the Director of Planning who stated that Mr Brown had not been selected for an interview because of “significant performance challenges over a sustained period”.

The substance of the response was passed on to Mr Brown, who asked a number of follow-up questions but did not address the points given by the director as to why he had not been selected.

In July 2024, the executive officer of the HRC wrote to Mr Brown that the commission would not proceed with the complaint.

While Mr Brown sought a judicial review to set aside the dismissal of the complaint, the court found that the complaint did not contain evidence to show unlawful racial discrimination.

While Mr Justice Martin said that discrimination is “insidious” and does not usually take a clearly identifiable form, he said that there must be some facts that a court could rely on to draw the inference of discrimination beyond mere suspicion.

He said that while the executive director’s letter did not provide reasons to dismiss the complaint and should have given Mr Brown the opportunity to be heard on the question of dismissing the complaint, the “deficiencies” did not amount to a miscarriage of justice.

The judge wrote: “It is difficult to imagine what Mr Brown could have said that would have changed the position. Either the complaint had arguable merit, or it did not. In this case, it is clear that it did not.

“In the second place, Mr Brown did not in fact present anything new in his subsequent challenge to the decision, which shows that there was nothing that would have been said that would have persuaded the executive officer that there might be an arguable point.

“In the third place, Mr Brown has now had the opportunity to ventilate his complaint fully, so that it would be pointless and wasteful to remit the matter to the executive officer for reconsideration on the basis of these irregularities. The result would inevitably be the same.”

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