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Police’s attorney: Bermudians have right to preferential treatment

Richard Horseman: Representing Bermuda Police Service

Employers have the legal right to give Bermudians preferential treatment over foreign work colleagues, according to a top attorney.Lawyer Richard Horseman made the argument on the second day of a Human Rights Commission hearing into a complaint by British police officer Michael Harkin.Mr Harkin, who served as a Police Constable with the Bermuda Police Service between 2005 and 2010, claims he missed out on a promotion to the rank of Sergeant because he was a non-Bermudian on a work permit. Although he passed a 2009 promotions board with the fourth highest test score, he was told that his promotion was being “deferred” because of Immigration issues, and a number of Bermudian officers were promoted ahead of him.Yesterday Mr Horseman, who is representing the BPS, argued that there were valid reasons for Mr Harkin’s promotion to be delayed.And he said that, even if Mr Harkin had suffered discrimination because of his nationality, employers had a right to put Bermudians first.“The fact of the matter is it is very difficult for a foreign national to come here and say ‘I am a foreign national and Bermudians are getting preferential treatment, they are getting promoted ahead of me and I am not getting promoted’; that’s fine because the [Human Rights] Act says so,” Mr Horseman said.“Even if he was being treated less favourably than Bermudians so what? The Human Rights Act allows that. It says that you can give preference to Bermudians.“Bermuda has to discriminate and we have to have protectionism. It’s a fact that we have to employ foreigners but we have people coming here who are not treated the same as Bermudians and that’s because it’s just not possible because of our size.”Mr Horseman added that Mr Harkin was informed of the reason why his promotion was being deferred in a letter from then-Police Commissioner George Jackson.“The letter gave the reason we are trying to get your work permit sorted out because you have six months left and yet Mr Harkin could not accept that,” Mr Horseman said.“When you have superior officers telling you that they are going to keep your promotion in abeyance pending the resolution of this issue, Mr Harkin said he was being discriminated against. He didn’t believe what was being said to him. There was no discrimination. It had nothing to do with the fact he was a foreign national, it had to do with the length of his contract.”Mr Harkin’s lawyer Allan Doughty countered that, although employers hiring new staff could give Bermudian candidates preferential treatment over foreigners, it was illegal for an organisation to discriminate on the grounds of their country of origin when considering staff for promotion.“The Act has nothing to do with promotion,” he said.“The promotion policy should be committed in a manner that is non-discriminatory. It cuts no ice here.”Mr Harkin also claimed that his employer decided not to renew his contract in an act of “retaliation” after learning that he had approached the Human Rights Commission for advice about his complaint.But Mr Horseman said that senior officers where unaware that the HRC was involved, and decided not to renew his contract because the complaint had not been resolved.In another letter to Mr Harkin, Commissioner Jackson wrote: “It is clear that my decision and rationale do not sit well with you. Our employment relationship is no longer harmonious as you feel discriminated against. Although this is clearly not the case, I have carefully considered all of the attendant facts in this matter, and I am satisfied that it would not be appropriate to invite you to continue service by way of a new employment contract.”The hearing, which was presided over by lawyer Paul King, will make a ruling at a later date.