The claimants, who were police officers in the Cayman Islands had been subject to changes to mandatory retirement ages.  Those officers engaged prior to November 2010 were subject to mandatory retirement at the age of 55. Those engaged between November 2010 and September 2016 had a mandatory retirement age of 60. The Commissioner had the power to re-engage officers who had been subject to mandatory retirement, but an ‘unwritten’ rule was applied meaning that individuals would only be re-engaged at the rank of constable.

The mandatory retirement rules were challenged on the basis that they were discriminatory and there was a non-discrimination provision within Section 16 of the Cayman Islands Constitution and Section 9 (which gave protection to family and private life).  These two sections were regarded as equivalent of Articles 14 and 8 of the European Convention on Human Rights. The Grand Court of the Cayman Islands and the Court of Appeal dismissed the claims stating that the discrimination point could not be argued as it did not fall within Section 9 (private life) and the discrimination point was only engaged in conjunction with other rights.

There was also an argument that the re-engagement policy was irrational, but this was dismissed on the basis that the claimants did not have standing as they had not applied for re-engagement. Aside from that it was held that the policy was not irrational as it was an ‘ameliorative’ measure which was in relation to the mandatory retirement rules.

The claimants appealed to the Privy Council. The Privy Council is a body connected with the Supreme Court in London which oversees final appeals for British territories and some Commonwealth countries. On the point of discrimination, the Privy Council made it clear that it was to be treated the same as the European Convention - that being that the discrimination point could only arise when it was within the ambit of another substantive provision. The substantive provision argued was the right to family and private life.

The Privy Council examined the meaning of ‘ambit’ outlining that it had to be considered in relation to a value judgment when examining how close the facts are to the related substantive right.  To this end, there are two ways in which Article 8/Section 9 can be invoked.  This is through the reason-based approach in that the private life issue arose because of the reason for the decision or the ‘consequence-based approach’ which looked at the consequences of private life as a result of the decision.

In applying these, it was held that a mandatory retirement age on the grounds of age was distant from the values that Article 8/Section 9 were to protect.  Further, there was a lack of serious consequences in having a mandatory retirement age meaning that no breach could be found.  This aspect of the case was dismissed.  The more procedural aspect of the appeal on standing was allowed and the case was remitted back to the courts in the Cayman Islands.

Practical Lessons 

The Privy Council has given some clarification on the application of Article 8 in conjunction with non-discrimination in Article 14 of the ECHR.    This will be important in employment matters especially for public bodies.   To this end, they have reiterated the view that non-discrimination does not stand alone and has to be linked to a substantive right.  In terms of Article 8 they outlined that it would only be engaged where the reason impacted upon private life, or the consequence of the decision impacted upon private life.  In this case, the link was tenuous and therefore the discrimination argument did not succeed. 
https://www.jcpc.uk/cases/jcpc-2019-0103.html