McConkey and another (Appellants) v The Simon Community (Respondents) (Northern Ireland)

Employment discrimination on the ground of political opinion concerns an opinion held by the applicant, whether presently or formerly. It does not prevent an employer from acting because of the applicant’s conduct or the risks arising from that conduct.

Under article 2(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998, an opinion approving or accepting violence for political ends connected with Northern Ireland is excluded from protected political opinion. The exclusion applies equally to an opinion formerly held but since abandoned. An employer may therefore refuse employment on that ground without contravening the Order.

The appellants had convictions for serious paramilitary violence committed in support of the Republican cause. After their release, they applied for posts in hostels operated by the Simon Community. The Community declined to employ them because it considered that their violent past, paramilitary connections and potential influence could endanger or unsettle vulnerable residents.

The Fair Employment Tribunal dismissed complaints of discrimination on the ground of political opinion. The Court of Appeal dismissed appeals by case stated in [2008] NICA 16.

The House considered whether the employment decisions were based on conduct or political opinion; whether approval of political violence could constitute a political opinion; and whether article 2(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998 excluded an opinion which had been abandoned before the employment application.

1. The appeals were dismissed unanimously. Lord Rodger delivered the leading speech. Lord Phillips adopted his reasons; Lord Brown and Lord Neuberger preferred his analysis on the disputed meaning of political opinion. Lord Carswell agreed with the construction of article 2(4), although he took a narrower view of political opinion.

2. Per Lord Rodger and Lord Carswell, the Community refused employment because of genuine concern for vulnerable hostel residents. The concern arose from the appellants’ violent past, their paramilitary connections and their possible influence upon residents. It was directed to the risks associated with their conduct, rather than their Republican beliefs. The Order protects opinions, not actions undertaken in support of them.

3. Per Lord Rodger, with the support of Lord Phillips, Lord Brown and Lord Neuberger, “political opinion” bears its ordinary meaning. An opinion concerning the methods by which political objectives should be achieved may, depending on the context, be political. But for article 2(4), an opinion approving violence for political ends in Northern Ireland could therefore fall within that expression. This construction also gives article 2(4) substantive work to do. Lord Carswell considered instead that approval of violence was a method of pursuing political ends and did not itself rank as political opinion in this context.

4. Per Lord Rodger, article 2(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998 applies to past as well as present opinions. The interpretative provisions operate whatever the relevant time frame. It would be anomalous to give “political opinion” different meanings depending on whether the alleged discrimination concerned an opinion held presently or formerly.

5. Accordingly, even if the Community had acted because the appellants formerly approved violence for political ends connected with Northern Ireland, article 2(4) excluded that opinion from protection. Refusal of employment on that ground was lawful.

6. Lord Rodger and Lord Carswell considered resort to parliamentary debates inappropriate because the enacted language was not ambiguous, irrational or absurd. In any event, the ministerial statements were confused and supplied no reliable guidance on the construction adopted by Parliament.

1. House of Lords: The appeals were dismissed unanimously. The House upheld the result reached by the Court of Appeal.
2. Court of Appeal in Northern Ireland: In [2008] NICA 16, the court dismissed appeals by case stated from the Fair Employment Tribunal.
3. Fair Employment Tribunal: The Tribunal dismissed both complaints. It concluded that article 2(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998 applied to political opinions held in the past as well as those presently held.