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Ruling sets precedent, says Harkin lawyer

Michael Harkin’s victory in the Supreme Court yesterday broke new ground in Bermuda in several areas of human rights and employment law.

His lawyer Allan Doughty told The Royal Gazette the ruling set a new precedent for people trying to pursue claims that their human rights had been infringed by employers.

He said: “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.”

The Harkin case also set new precedent in how damages could be assessed by the court. Mr Doughty added: “On the issue of compensation Chief Justice Kawaley overturned the board’s ruling that Mr Harkin’s loss of earnings claim should be reduced by 40 per cent for allegedly failing to prove that he had availed himself to all opportunities to earn overtime in his new position.

“The Chief Justice instead held that the evidence showed that Mr Harkin’s overall loss of earnings should be reduced by 32 per cent as that was the apparent difference in his overtime earnings between Bermuda and the UK. This is significant as this is the first time that a Bermudian court has awarded a loss of overtime pay to a police officer.

“Chief Justice Kawaley also found that there was no justification for the reduction of Mr Harkin’s loss of pension in the amount 40 per cent.

“For that reason the Chief Justice ordered that Harkin be awarded the full difference between the pension he would have earned while working his five-year contract in Bermuda.

“Finally, the Chief Justice found that the board was wrong to reduce Mr Harkin’s overall period of loss to three years from the five-year period of loss he claimed, which was the term of the second five-year contract. This is highly significant as it not only raises his total claim for loss of earnings but also spells out for the first time that in Bermuda’s Human Rights Law, a complainant is not to be compensated by pay-in-lieu of notice of up to six months pay, but rather for his actual period of loss.

“For that reason in Mr Harkin’s case, his damages were calculated on the basis of what he would have earned in Bermuda, as to what he actually earned in the UK over the space of five years subject to a deduction in his loss of overtime and a further deduction from the difference of cost of living between Bermuda and UK.”