2021 Amendments to the Human Rights Act

The recent amendments to Bermuda’s human rights legislation mark an important step in bolstering the independence of the Human Rights Tribunal, which is designed to adjudicate human rights complaints in an impartial, independent and efficient manner.

Human Rights Tribunal Process

A Human Rights Tribunal is an independent body empanelled to resolve complaints of alleged discrimination in a fair, impartial and timely manner. The Tribunal is comprised of three (3) panel members; a legally qualified Tribunal Chair and two (2) members. Where a matter is referred to a Tribunal, the panel members have no previous knowledge, involvement or information pertaining to the investigation process. When a complaint is referred to a Tribunal, the onus is on the parties to a complaint to supply the Tribunal with all evidentiary materials to support their claim, which is inclusive of witness statements.

The Tribunal is tasked with making factual findings based on the evidence adduced to determine whether unlawful discrimination has occurred. Where a Tribunal determines that discrimination has occurred, the Tribunal may order any party to do any act or thing that constitutes full compliance and rectify any injury caused, which may include financial restitution. The orders of the Tribunal are enforceable and subsequently registered with the Supreme Court.

Where a party wishes to appeal a decision of the Tribunal they may do so by way of the Supreme Court. The Human Rights (Appeals) Rules 2018 provide guidance for parties wishing to appeal a Tribunal decision.

Tribunal Process Phases

The below sections describe the human rights complaint adjudication process. It is the role of a Human Rights Tribunal to ensure the process is fair and efficient.


Case Management Hearings

A case management hearing is a hearing held to discuss the complaint process, identify and understand key issues in a dispute and set directions. A Tribunal may give directions or orders regarding the steps that may be held and fix dates for preliminary issues to be resolved and for the substantive hearing.

The Tribunal may:

  • Schedule dates for another case management hearing, a preliminary hearing, a substantive hearing, a judgment hearing and/or a costs hearing.
  • Determine whether there is any further opportunity for settlement before a hearing.
  • Determine whether other issues need to be resolved before a hearing.
  • Set a schedule for submissions on an application made by either party.
  • Confirm that the participants are prepared to proceed to a hearing and that the hearing can be completed within the dates scheduled for the hearing.
  • Determine whether the participants will produce an agreed statement of facts to ensure the substantive hearing addresses outstanding issues.
  • Confirm or set dates for a party to take steps, including:
  • produce a list of the witnesses the participant intends to call at the hearing;
  • produce witness statements;
  • produce a list of documents the participant intends to submit into evidence at the hearing; and
  • produce a brief statement of the factual and legal basis for the remedy or order sought.

Directions Ordered by the Tribunal

The Tribunal will give instructions to the parties on how they are to prepare the case which are known as “directions.” The directions are intended to ensure that all matters pertaining to the case are made known to the Tribunal and to all parties to the complaint before the substantive hearing. There are several purposes behind this. One is so that it becomes clear which parts of the case are disputed and which are not – only the disputed issues will need a Tribunal’s decision. Another is so that the Tribunal can make the right arrangements for the hearing, including allowing enough time for it to be heard. Finally, so that the parties themselves can get a full understanding of each other’s case.

This third purpose enables the parties to the complaint to concentrate their preparation on the disputed issues, which will help the Tribunal to reach a decision on those issues. It also makes it easier for the parties to resolve the case or to come to a sensible agreement which would make a substantive hearing unnecessary. The parties have duties both to assist and cooperate with the Tribunal and to try to reach an agreement where possible.

Tribunals may direct parties to participate in the Human Rights Commission’s Voluntary Mediation Program where there is a possibility of resolving the dispute before the hearing. In those circumstances, the Office of the Human Rights Commission will arrange for mediation services which are at no cost to the parties. The directions given by a Tribunal are issued to assist the parties in understanding what they are required to comply with in the preparation of their case.

Composition of the Tribunal Members

Human Rights Tribunal panel members represent a broad spectrum of the Bermuda community including areas of knowledge, skills and advocacy experience and consist of a group of up to fifteen (15) persons, six (6) of which shall be members of the Bermuda Bar in good standing.


Overview of the Role of Panel Members

Human Rights Tribunal Panel Members are appointed for a maximum term of three (3) years. They serve as panel members of the Human Rights Tribunal which shall be responsible for hearing human rights complaints. Human Rights Tribunals are quasi-judicial bodies that provide direct access to adjudicators who hear the merits of a case and render a judgment. Panel Members of the Human Rights Tribunal must be fair, impartial, politically neutral and committed to uphold the values of natural justice and procedural fairness.

Overview of the Role of Panel Chairperson

The Selection and Appointment Committee shall appoint from the panel members of the Human Rights Tribunal, a panel Chairperson and a panel Deputy Chairperson who shall hold office for a period of three (3) years and may be reappointed from time to time for a like period. No person shall be qualified to be the panel Chairperson or panel Deputy Chairperson unless they are a barrister and attorney of at least five (5) years’ standing and have knowledge of human rights law.

The panel Chairperson shall select three (3) members from the panel as members of the Tribunal to determine complaints referred for adjudication. The panel Chairperson shall select one of the members of the Tribunal to act as the Chairperson of the Tribunal, however, the Chairperson of the Tribunal must be a barrister and attorney of at least five (5) years’ standing.

The panel Chairperson (or in their absence the panel Deputy Chairperson) shall receive declarations of interests from panel members of the Human Rights Tribunal where they have a direct or indirect interest in any matter before the Human Rights Tribunal.

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