The UK’s Privy Council has allowed an appeal by current and former police officers over the Royal Cayman Islands Police Service’s previous policy of requiring officers to retire at 55 and then rehiring them at a lower rank. The issue is being sent back to the Cayman Islands Grand Court for reconsideration.

The appeal stems from an action brought in 2016 by the Royal Cayman Islands Police Association and 10 officers against the police commissioner and the attorney general. The officers claimed they had been discriminated against on the grounds of age because they were required to retire at 55, whereas colleagues appointed after 22 Nov. 2010 – when the mandatory retirement age was raised to 60 – were not. The officers also questioned the legality of being re-engaged following retirement as constables or senior constables – the lowest ranks within the RCIPS – when they had previously served at higher ranks.

The Privy Council pointed out that there is no specific legislation in Cayman dealing with age discrimination, so the individual police officers relied on the non-discrimination and the right to private and family life provisions in the Cayman Islands Constitution, which are equivalent to specific articles in the European Convention on Human Rights.

The officers contended that the RCIPS’s re-engagement policy was in breach of section 19(1) of the Constitution which states that “All decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair.” They argued that the re-engagement policy, which had no room for any exception and only permitted the commissioner to rehire officers who retired at the rank of chief inspector or below as constables or senior constables, was not rational as it did not allow him to take into account the qualities of those being re-engaged or the needs of the police service.

Grand Court Acting Judge Nova Hall in a 2018 ruling rejected the claims that the RCIPS was using discriminatory practices in deciding which senior officers should be retired and when those retirements should occur. In her ruling, she stated that former Police Commissioner David Baines’s decision to retain some RCIPS officers beyond age 55 while “retiring” others was an “entirely appropriate government action”.

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The following year, the Cayman Islands Court of Appeal dismissed the police association’s and the individual police officers’ appeal of Hall’s ruling. The association and the officers then took the matter to the Privy Council, the highest appeals court.

Each of the 10 police officers involved in the original lawsuit joined the RCIPS before 22 Nov. 2010 and each was required to retire by 9 Sept. 2016, as they would have turned 55 by then. All but two of those officers were rehired as constables or senior constables; this represented a reduction in rank for seven of those officers. The claims of two of the 10 officers were discontinued and those officers were not party to the Privy Council appeal.

In the cases involving the two officers who were not rehired, one had been a senior constable who had turned down the option of being re-employed after retirement as a constable, and the second involved a detective sergeant in the Financial Crime Unit who had declined to be rehired as a constable.

The Privy Council considered three questions regarding the appeal. These were:

(i) Did the mandatory retirement of the individual police officers on the ground of age fall within the ambit of section 9 of the Constitution, which relates to the right to a private and family life?

(ii) Was the RCIPS re-engagement policy not rational and therefore in breach of section 19(1) of the Constitution? The Privy Council considered if the RCIPS was using an “irrational free-standing policy” or “could its connection to mandatory retirement provide a rational basis for the policy as an ameliorative measure in relation to those compelled to retire?”

(iii) Did the two officers who opted not to be rehired at a lower rank have standing to challenge the re-engagement policy?

On the first question, the Privy Council found that the mandatory retirement age did not fall under the ambit of section 9, and that element of the appeal was dismissed.

On the second question, the judges found that while the re-engagement policy was inextricably linked to mandatory retirement and that its purpose was to ameliorate that retirement, that “cannot change its irrationality”.

Their judgment noted, “A policy that is designed with the best of intentions can nevertheless be irrational when it is a blanket policy applied irrespective of the circumstances of the individual or the needs of the police service.” On that basis, the judges allowed the appeals of the officers who were rehired at lower ranks, and remitted the matter to the Grand Court for reconsideration.

On the third question, the Privy Council ruled that the Grand Court should reconsider both officers’ cases, as the RCIPS’s re-engagement policy did not have the flexibility to take the officers’ abilities or the needs of the police service into account.

The Compass has reached out to the RCIPS for comment and is awaiting a response.

Read the full Privy Council ruling here.

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