McConkey & Anor v The Simon Community

The appellants alleged unlawful discrimination under the Fair Employment and Treatment (Northern Ireland) Order 1998 (the Order), in particular article 19(1)(a)(iii) taken with article 3(1), on the ground of their political opinion. The central legal issues were (i) whether an opinion approving or accepting the use of violence for political ends is a "political opinion" within the meaning of the Order, and (ii) whether article 2(4) excludes such opinions only if presently held or also when formerly held and since abandoned.

The House concluded that the Simon Community refused to employ the appellants for reasons of risk to vulnerable residents and not because of their political opinions, and thus the refusals were lawful. The House also considered the meaning and scope of article 2(4): a majority treated an opinion approving the use of violence as a political opinion for ordinary meaning purposes but held that article 2(4) operates to exclude that class of opinion from the protection of the Order, including where it was formerly held. One judge preferred the view that approval of violence is not a "political opinion" for the Order's purposes, but agreed the appeals should be dismissed on the factual finding that the employer acted for safety reasons.

The Simon Community, a charitable body running hostels for homeless and often vulnerable people in Northern Ireland, withdrew conditional offers of employment to the appellants after pre-employment checks revealed past paramilitary convictions for violent offences. The appellants alleged unlawful discrimination by reason of political opinion under the Fair Employment and Treatment (Northern Ireland) Order 1998 (seeking compensation), asserting they had been refused employment because of a former political opinion approving the use of violence connected with Northern Ireland affairs. They contended that article 2(4) of the Order should not exclude a previously held and since abandoned opinion from the scope of "political opinion" in article 3(1) and article 19.

Procedural posture: the Fair Employment Tribunal dismissed the complaints (decision issued 29 December 2006); the Court of Appeal of Northern Ireland dismissed the appeals ([2008] NICA 16); leave to appeal was granted to the House of Lords.

Issues for decision:

• Whether the respondent refused employment because of the appellants' political opinion;
• Whether the expression "political opinion" includes approval or acceptance of the use of violence for political ends;
• Whether article 2(4) excludes only present opinions or also previously held and later abandoned opinions.

Reasoning and outcome: the House accepted the primary factual findings that the respondent's decision-makers were genuinely motivated by concern for the safety and welfare of vulnerable residents; that motivation, not political animus, explained the refusals. On construction, the majority analysis was that (a) the statutory scheme distinguishes opinion from conduct and that article 2(4) was enacted to exclude opinions approving violence from the scope of protected "political opinion", and (b) article 2(4) applies to past as well as present opinions. A differing view was expressed by one law lord who considered approval of violence not to constitute a "political opinion" at all; however, all concluded the appeals should be dismissed because the employer acted for safety reasons. The House therefore dismissed the appeals.

The court briefly considered Hansard and historic parliamentary material but found them unhelpful to alter the ordinary textual construction and the factual result.

Appeals dismissed. The House held that the Simon Community refused employment because of genuine concerns about safety of vulnerable residents, not because of the appellants' political opinions. On statutory construction, the majority treated an opinion approving the use of violence as one which article 2(4) was intended to exclude from the Order's protection and held that article 2(4) applies to past as well as present opinions; one member considered approval of violence not to be a "political opinion", but reached the same outcome on the primary factual findings.

Appeal to the House of Lords from the Court of Appeal of Northern Ireland ([2008] NICA 16). The applicants' claims originated in the Fair Employment Tribunal (decision issued 29 December 2006).