Bush v AG of the Cayman Islands

The Appellant was a care worker. The care home at which she worked was a registered charity. She was dismissed from her employment after refusing to take the Covid vaccine. She sought to bring a claim of unfair dismissal under the Cayman Islands Labour Act. But the claim was rejected on the grounds that s.3(b) of the Act said that it did not apply to registered charitable organisations.

She sought judicial review of that rejection decision, asserting that s.3(b) was unconstitutional. The High Court allowed her claim and made declarations of incompatibility. The Government appealed. By the time the case reached the Privy Council, there were three issues: (1) Does s.3(b), by effectively creating an immunity for some employers from being sued for unfair dismissal, breach the right of access to court and to a fair trial, as set out in s.7 of the Cayman Islands Constitution (corresponding to Article 6 of the EHCR)? (2) Does the differential treatment as between employees of charitable institutions and employees of others, created by a.3(b), constitute discrimination falling within the “ambit” of the right to respect for private life, as set out in s.9 of the Constitution (corresponding to Article 8 of the ECHR)? (3) Is being employed by a charity an “other status”, within the meaning of the non-discrimination obligations set out in s.16 of the Constitution (corresponding to Article 14 of the EHCR)?

The JCPC decided Issues 1 and 2 in favour of the Government, with the consequence that the Appellant’s claim for a breach of her s.7 and s.16 rights failed overall. The JCPC found it unnecessary to resolve the dispute between the parties about “status” under Issue 3 (which had not been raised in the Courts below).

On Issue 1 (fair hearing), the JCPC held that the effect of the Labour Act, properly construed, was that the Appellant enjoyed no arguable substantive unfair dismissal rights. Nor was it possible, as she contended, to derive a general right not to be unfairly dismissed from international law principles or from ECHR case law. These conclusions were fatal to the Appellant’s fair hearing complaint, because it is well established that the right to a fair hearing under Article 6 ECHR is essentially a procedural one, and cannot be used to generate a substantive right in domestic law where Parliament has decided that no such right exists.

On Issue 2 (private life / ambit), the JCPC observed that in some unfair dismissal complaints, including potentially this one, private life interests might well be engaged. But the Appellant had brought a constitutional claim and the focus had to be on whether, as alleged, the legislation was incompatible. Applying the relevant jurisprudence, the question that had to be considered was whether, by providing some employees with the right to sue their employer for unfair dismissal, Parliament had chosen to safeguard or promote the private life interests of those employees. The answer to that question was of general and constitutional significance and could not depend on the precise facts of a particular employment dispute that had later arisen, even though that dispute had led to the constitutional challenge. The purpose of the unfair dismissal provisions was not to further employees’ enjoyment of a private life or to protect them from dismissal for reasons intrinsically connected with their private life; it was simply to protect the relationship between employer and employee. This was a policy which was remote from the core interests which the right to respect for private life was intended to protect, and the link was no more than tenuous. Accordingly, the differential effect created by the Labour Act did not come within the ambit of the right to respect for private life, and there could be no question of it constituting discrimination incompatible with the Constitution.

David Pievsky KC acted for the Government of the Cayman Islands.

The full Judgment can be found here.