John McConkey and Jervis Marks and Simon Community Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Higgins LJ |
| Judgment Date | 21 February 2008 |
| Neutral Citation | [2008] NICA 16 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 21 February 2008 |
| Year | 2008 |
1
Neutral Citation no. [2008] NICA 16
Ref:
HIG7088
Judgment: approved by the Court for handing down
Delivered:
21/2/08
(subject to editorial corrections)
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_________
BETWEEN:
JOHN McCONKEY and JERVIS MARKS
Claimants/Appellants;
and
SIMON COMMUNITY NORTHERN IRELAND
Respondents.
_________
Before Higgins LJ and Girvan LJ and McLaughlin J
_________
HIGGINS LJ
[1] This is a an appeal by way of case stated from a decision of the Fair
Employment Tribunal (the Tribunal) holding that the respondent did not
unlawfully discriminate against the appellants under the Fair Employment
and Treatment (Northern Ireland) Order 1998( the 1998 Order). On 18 October
2000 the first appellant lodged a claim with the Tribunal against the
respondent seeking compensation for alleged discrimination under the 1998
Order. On 30 August 2000 the second appellant lodged a similar claim with
the Tribunal. As the claims gave rise to identical issues it was agreed between
the parties and the Tribunal that the claims be heard together and that the
issue of liability should be determined first. In each case the Tribunal was
asked to determine whether the respondent discriminated against either
appellant on grounds of the respondent’s perception of their political beliefs.
The hearing lasted twelve days and the Tribunal, to whose industry I pay
tribute, delivered a forty seven page decision in which it found that the
respondent did not unlawfully discriminate against either appellant.
Following its decision the Tribunal received a requisition to state a case on
twelve questions. The Tribunal considered there was considerable overlap
and repetition in the questions put forward. Accordingly it agreed to state a
case on two questions –
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1. Whether the Tribunal, in deciding that the first and second appellants
were not unlawfully discriminated against by the respondent contrary
to the 1998 Order, failed to properly interpret and apply Article 2(4) of
the 1998 Order and thereby erred in law?
2. Did the Tribunal err in law in interpreting Article 2(4) of the 1998 (sic),
so as to defeat the claim of each appellant of unlawful discrimination
by the respondent on the grounds of political opinion, where the
political opinion, which was the ground for the decision to refuse
employment to each appellant, no longer applied to each appellant at
the time of the application by each appellant for employment.
[2] On 19 June 2000 the first appellant applied for the post of residential
support worker in the Belfast area. On the application form he was asked the
following question -
“Have you ever been convicted of a criminal offence
which could not be considered to be ‘spent’ under
Rehabilitation of Offenders Order 1978 ?.
Yes/No
If Yes give details.”
[3] The first appellant answered the question by putting a question mark
but provided no details. At the same time he completed a form consenting to
a pre-employment check (PECS). The form provided the reason for this,
namely, to ensure employees are not appointed who might be a risk to
children or adults with learning difficulties. This form was signed on 16 June
2000. The form asked also whether he had been convicted at any court for any
offence. Again the second appellant put a question mark at the side of the
form. In the body of the form he stated –
“I do not have any criminal convictions because I
have never been involved in any criminal activity. I
have been convicted of alleged political activity by
special courts 1975 – 1977 for being, it was alleged, a
republican and for life during 1982 – 1996 for alleged
political activity.”
[4] He gave his current address as Lenadoon but also stated that ‘from
1982 to 1996 he had been at Long Kesh POW Camp Lisburn’. The first
appellant was short- listed and interviewed. On 4 August 2000 he was offered
the post for a period of six months initially, but subject to the pre-employment
check. On 6 August 2000 he confirmed in writing his acceptance of the post on
terms set out in the letter.
3
[5] The pre-employment check revealed that the first appellant had been
convicted of murder and possession of a firearm with intent to endanger life
and of belonging to a proscribed organisation. He was released from custody
on 28 March 1997 the Secretary of State being satisfied that the risk of
repetition of the offence or another offence of violence was minimal.
On 4 September 2000 the respondent wrote
“….. The checks highlighted the nature of the offence
of which you have been convicted. As an organisation
we are not willing to employ staff who may directly
or indirectly place our resident group at risk…”
[6] The decision not to appoint the first appellant was taken by Miss A.
[7] The application by the first appellant to the Tribunal for compensation
was lodged on 18 October 2000. This set out his complaint in these terms -
‘Withdrawal of offer of employment Political discrimination’. In the
description of his complaint he stated – ‘discriminated against me taking into
account irrelevant political convictions’ and ‘on grounds of perceived political
opinion’.
In Replies to Particulars the respondent stated, inter alia, –
“…. the respondent considers that its reliance on the
applicant’s convictions for offences of violence for
political ends as a reason for not employing the
applicant is therefore protected by the provisions of
Article 2(4) against a finding of discrimination on the
grounds of political opinion.”
[8] The Tribunal came to the conclusion that it was “not merely the
convictions themselves which were central to her ( that is Miss A’s) decision
but also the additional element of paramilitary involvement in each
conviction and the relevance of that additional element in coming to the
decision that she did” (page 45 paragraph 7.20). In answer to a question she
had stated that ‘politics was an element of the decision’ “.
[9] In evidence the first appellant said he did not support the use of
violence as a means of achieving the political objective he supported, namely
a 32 county republic. He stated that he supported the Peace Process and as a
member of Sinn Fein he canvassed support for the Good Friday Agreement.
At the time he applied for the post he did not support the use of violence for
political ends and had never supported punishment beatings. This evidence
was not challenged by the respondent.
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McConkey and another v Simon Community Northern Ireland
...Connolly Solicitors) Respondents: Noelle McGrenera QC Anne Finegan (Instructed by J Blair Solicitors) SESSION 2008-09 on appeal from: [2008] NICA 16 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE LORD PHILLIPS OF WORTH MATRAVERS My Lords, 1 I have had the advantage of reading in ......
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McConkey et al. v. Simon (Community), [2009] N.R. Uned. 190
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