Means to an end

McConkey and anor v Simon Community Northern Ireland

Under legislation that applies only in Northern Ireland, it is illegal for employers to discriminate against someone because of their political opinion unless they support or approve of the use of violence for political ends. In McConkey and anor v Simon Community Northern Ireland, the House of Lords said that the provision applies even if the individual no longer holds that opinion.

Basic facts

The Simon Community of Northern Ireland (SCNI) is a charity providing temporary accommodation for the homeless, many of whom had left their homes because of threats from paramilitary organisations against them.

In 2000, Mr McConkey was offered a job as a residential support worker with SCNI and in 2002 Mr Marks was offered a job as a night worker. However, the offers were withdrawn when SCNI became aware of their criminal past and specifically the nature of those convictions which included murder, conspiracy to murder and belonging to the IRA.

At the time of making their applications the men no longer approved of, or accepted, the use of violence for political ends. They claimed unlawful discrimination on the ground of their political opinion under article 3(1) of the 1998 Fair Employment and Treatment (Northern Ireland) Order. The Simon Community denied discrimination, relying on article 2(4).

The Fair Employment Tribunal dismissed their claims as did the Northern Ireland Court of Appeal.

Relevant law

Article 3(1) states that the term “discrimination” includes “discrimination on the ground of religious belief or political opinion”.

Article 2(4) excludes a political opinion “which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland”.

House of Lords decision

The House of Lords agreed that SCNI had not discriminated against the men because of their political opinions, but because of a concern that employing them might pose risks for the vulnerable people the charity cared for. It would also have refused to employ someone who had engaged in violence to pursue Loyalist goals.

It held that the “the Order is concerned with discrimination against someone on the basis of the religious belief or political opinion which he holds. It is not concerned with discrimination on the ground of actions that the person may take in support of that religious belief or political opinion”.

It confirmed that, because of article 2(4), the term “political opinion” in article 3(1) could not refer to an “opinion consisting of, or including, approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland”.

It also ruled that that, that although article 2(4) was written in the present tense, it still applied to an opinion that someone had once held, but had abandoned by the relevant time (in this case, when the men applied for the job with SCNI).

Their Lordships acknowledged that although many people in Northern Ireland could now overlook support for the use of violence in the past, there were many who could not “see matters in that way”.

The real question, therefore, was “whether the 1998 Order makes it unlawful for people who feel like that to refuse to employ, or to serve, someone who once approved of the use of violence for political ends in Northern Ireland, but now no longer does so. In my view, there is nothing surprising, far less absurd or outrageous, in holding that the 1998 Order allows such people to say: 'No, I'm sorry, because of all I have suffered, I won't employ you; I won't serve you.' To hold otherwise would be to force these vulnerable individuals to associate with people who approved of the use of the very kind of violence that has blighted their lives”.