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Fair Employment Tribunal Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> McConkey & Anor v The Simon Community (NI) [2006] NIFET 452_00FET (4 April 2006) URL: http://www.bailii.org/nie/cases/NIFET/2006/452_00FET.html Cite as: [2006] NIFET 452_00FET, [2006] NIFET 452_FET |
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CASE REF: 00452/00FET
00376/02FET
CLAIMANTS: John McConkey
Jervis Marks
RESPONDENT: The Simon Community (N.I.)
The unanimous decision of the Tribunal is that:-
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Panel Members: Dr T Cradden
Mr B McGuire
Appearances:
The claimants were represented by Ms K Quinliven, instructed by Rosemary Connolly, Solicitors.
The respondent was represented by Ms N McGrenera QC and Ms A Finnegan, Barrister-at-Law, instructed by J Blair, Employment Law Solicitor.
REASONS
The second claimant presented his originating application to the Tribunal on 30 August 2002, in which he claimed unlawful discrimination on the grounds of his political opinion, contrary to the 1998 Order, in relation to his failure to be appointed to the post of night worker at the respondent's hostel in Newry. The respondent, in its notice of appearance, dated 22 October 2002, denied any such unlawful discrimination.
"1. Whether in failing to appoint the applicants, the respondent organisation discriminated against the applicants contrary to Article 3 of the Fair Employment & Treatment (Northern Ireland) Order 1998.
2. Whether in failing to appoint the applicants, the respondent organisation discriminated against the applicants because of the respondent's perception of their political beliefs, contrary to Article 3 of the Fair Employment & Treatment (Northern Ireland) Order 1998.
3. Whether on the facts of the case the respondent organisation can rely upon Article 2(4) of the Fair Employment & Treatment (Northern Ireland) Order 1998.
4. Whether the respondent's reliance upon the applicants' convictions for offences of political violence as a reason for not employing the applicants is protected by the provisions of Article 2(4) against the finding of discrimination on the grounds of political opinion.
5. What is the correct interpretation of Article 2(4), of the Fair Employment & Treatment (Northern Ireland) Order 1998".
(1) In this Order "discrimination" means –
(a) Discrimination on the grounds of … political opinion …. and "discriminate" shall be construed accordingly.
(2) A person discriminates against another person on the ground of … political opinion and any circumstances relevant for the purposes of this Order if –
(a) on [this ground] he treats that other less favourably than he treats or would treat other persons.
(3) Comparison of the cases of persons of different … political opinion under paragraph (2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
(3) In this Order references to a persons … political opinion include references to –
(a) his supposed … political opinion; and
(b) in the absence or supposed absence of any, or any particular, … political opinion.
(4) In this Order any reference to a person's political opinion does not include an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public or any section of the public in fear.
Article 19 –
(1) It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland, -
(a) where that person is seeking employment –
(i) in the arrangements the employer makes for the purpose of determining who should be offered employment; or
(ii) in the terms in which he offers employment; or
(iii) by refusing or deliberately omitting to offer that person employment for which he applies.
(1) A complaint by any person ("the complainant") that another person ("the respondent") –
(a) has committed an act of discrimination against the complainant which is unlawful by virtue of any provisions of Part III …
(b) … may be presented to the Tribunal.
Where on the hearing of the complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –
(a) has committed an act of unlawful discrimination or … against the complainant, … the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.
[This provision was inserted by Article 24 of the Fair Employment Treatment Order (Amendment) Regulations (Northern Ireland) 2003; and which, by virtue of the transitional provision set out in Regulation 2(2) of the said Regulations applies to these proceedings]
The leading authority on the interpretation of that Section is the recent decision of the Court of Appeal of England and Wales in the case of Igen -v- Wong [2005] IRLR 258, which approved with amendment, the guidelines set out in the earlier decision of Barton -v- Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332. The Tribunal, in the absence of any other relevant authority, considered it appropriate to follow, in these proceedings, the said guidance as amended, and which is set out below.
"(i) Pursuant to Section 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could (Tribunal's emphasis) conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of Section 41 or Section 42 of the SDA is to be treated as having been committed against the complainant. These are referred to below as "such facts".
(ii) If the claimant does not prove such facts he/she will fail.
(iii) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he/she would not have fitted in".
(iv) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
(v) It is important to note the word "could" in Section 63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage the Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(vi) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.
(vii) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the SDA from an evasive or equivalent reply to a questionnaire or any other questions that fall within Section 74(2) of the SDA.
(viii) Likewise, the Tribunal must decide whether any provision of relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to Section 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(ix) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
(x) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(xi) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.
(xii) That requires the Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the Burden of Proof on the balance of probabilities that sex was not a ground for the treatment in question.
(xiii) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that Burden of Proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice".
"political opinion" to the unionists/nationalists divide pertaining in Northern Ireland. Hutton L C J (as he then was) did not offer a comprehensive definition, but considered that it was wide enough to cover political matters relating to conservatism and socialism.
Kelly L.J., in delivering a concurring judgment, held as follows:-
"The major premise of the Tribunal that the phrase "political opinion" is obscure and could lead to an absurd result is, I consider, quite incorrect. On the contrary, I consider that its literal meaning is plain and clear. It is a familiar phrase, in common use, and readily understood by users of the English language.
There can be no difficulty as to the meaning of the word "opinion" and none as to the word "political". When they come together in the phrase "political opinion" it means, in broad terms, and without attempting any exhaustive definition, an opinion relating to the policy of government and matters touching the government of the state. The word "political" is defined in the shorter Oxford Dictionary as:-
"of, belonging or pertaining to the state, its government and policy; public, civil; of or pertaining to the science or art of government".
It seems to me clear that a person who holds an opinion on matters relating to any of the elements of this definition, holds a political opinion".
"It seems to us that the type of political opinion envisaged by the Fair Employment legislation is that which relates to one of the opposing ways of conducting the government of the state, which may be that of Northern Ireland, but is not confined to that political entity. The object of the legislation is to prevent discrimination against a person which may stem from the association of that person with a political party, philosophy or ideology, and which may pre-dispose the discriminator against him. For this reason, we consider that the type of political opinion in question must be one relating to the conduct of the government of the state or matters of public policy".
In re Treacy's application [2000] NI 330, Kerr J, (as he then was) was also required to consider the meaning of the phrase "political opinion"; and although he expressed the need for caution in dealing with the concept in a discrimination case, he did not attempt a comprehensive definition of the phrase.
"Have you ever been convicted of a criminal offence, which cannot be considered "spent" under the Rehabilitation of Offenders (Northern Ireland) Order 1978? Yes/No
If yes, give details".
The claimant answered the first question by putting on the form a question mark.; and did not provide any details.
"Following your recent attendance at test and interview for the above post [residential support worker], I can now offer you the above fixed term post, based at 414 Falls Road, Belfast for a period of 6 months initially, commencing 25 September 2000 at 10.00 am. You should report to Debbie Forbes, Project Leader, at this time.
…
Your employment is subject to receipt of satisfactory pre-employment references and checks and a successful completion of a six-week probationary period.
…".
On 6 August 2000, the claimant confirmed his acceptance of the post on the terms and conditions outlined in the said letter of offer.
No evidence was given by the respondent, in relation to what occurred at the said interview and resulted in the sending of the said letter of offer; indeed, the Tribunal was informed the records of the said interview were not able to be located, having apparently not been retained by the respondent. In any event, there was no dispute by the respondent that, subject to the said caveats set out in the said letter of offer, the first claimant was considered to be suitable to be offered the said position.
The accompanying note to the form stated:-
"The post to which you are applying involves substantial access to people under 18 years of age/adults with a learning disability and before appointing anyone to such a post, it is our policy to ask for a check to be carried out by the Department of Health & Social Services (DHSS) Pre-Employment Consultancy Service. The purpose of the check is to make sure that people are not appointed who might be a risk to people under 18 years of age/adults with a learning disability.
The check will tell us whether you have a criminal record or whether the DHSS holds any other information about you which might have a bearing on your suitability. Any information which we receive will be treated confidentially, and will be discussed with you before we make a final decision [Tribunal's emphasis]. After that decision is made the information received will be destroyed by shredding".
In the Tribunal's opinion, this requirement to discuss the information, the subject matter of the said consent, was not, as suggested by the respondent, merely an opportunity to ensure the person, the subject matter of the check confirmed the accuracy of the details set out in a PECS report, including the person's identity; but rather was an opportunity for a full discussion about any information received and, in particular, as set out in the form, any bearing such information might have on that person' suitability for the post.
In answer to whether the first claimant had been convicted at any court for any offence or cautioned by the Police for any offence or had any prosecutions pending for any offence, the first claimant did not answer the questions but put a question mark to the side of the form.
He also stated in the body of the form:-
"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 republican activity".
The first claimant provided details of his current address as 82 Lenadoon Avenue, Belfast, BT11 9HD, and also stated that from 1982 - 1996 he had been at Long Kesh POW Camp, Lisburn, County Antrim.
This release on licence was made by the Secretary of State for Northern Ireland upon a recommendation by the Life Sentence Review Board, who in order to have made such a recommendation would have assessed him at that time as suitable for release, pursuant to the terms of the Prison Act (Northern Ireland) 1953. As appears from the explanatory memorandum, published by the Northern Ireland Office, to explain the role of the Board in giving such a recommendation to the Secretary of State, the over-riding consideration is the need to protect the public from the risk of a repetition of the offence or some other kind of violence; and the Secretary of State has to be "personally satisfied, as it is reasonably possible to be, that the degree of risk is minimal". It would therefore appear, in the Tribunal's view, that in releasing the first claimant on licence at that time, the Secretary of State was so satisfied.
"I am writing to inform you that we have now received all necessary pre-employment checks. The checks highlighted the nature of the offences 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 and I must, regretfully, withdraw the offer of employment to you".
There was no dispute that a conversation took place between the claimant and Mrs Lawlor during the course of the visit, which was both informal and friendly. The first claimant had no specific recollection of the meeting. On the other hand, Mrs Lawlor gave evidence that she recalled the first claimant, during the course of the conversation that they had on this visit to the Hostel, referring to two specific matters - firstly, he had named a young girl whom he knew had been a former resident at the Hostel at 414 Falls Road, Belfast; and secondly, that he expressed surprise that he had got the job. The first claimant denied that he ever knew such a young girl, albeit he accepted that, in the course of conversation, he might have referred to a male cousin, who had previously been a resident of the Hostel; but he had no memory of making such reference. Mrs Lawlor acknowledged that no record was kept of the conversation by her; and indeed was not even sure whether she had mentioned, at any time immediately following this meeting, to her superiors this remark about the young girl, which she found to be inappropriate. On balance, in the absence of any record or reference to her superiors at the time, the Tribunal was not satisfied that the first claimant made any such remark about the young girl; though it does believe he may have referred to a male cousin having been a resident at some time. Certainly, the Tribunal was satisfied that, whatever was said in relation to any previous resident of the Hostel, it was of no relevance or discussed further by the respondent in relation to whether the first claimant was to be employed in the post. The second matter referred to above, which Mrs Lawlor stated had concerned her, was however something that she did mention to her superiors, whenever the first claimant's suitability for the post was discussed, following the receipt of the PECS Check and before the letter dated 4 September was sent to him. At the time of her meeting at the hostel, Mrs Lawlor accepted that she did not challenge the first claimant about what he meant; albeit she could not understand how somebody would be surprised they had got a job. The first claimant did not accept he expressed surprise, as contended by Mrs Lawlor; but did accept he may have used words to express his delight at obtaining such employment, after looking for some considerable period of time, and that may have been taken, in the way he expressed himself, as surprise by Mrs Lawlor.
The Tribunal is satisfied that Mrs Lawlor only came to express concern about this remark, whenever, following the receipt of the PECS Check details, Mr Barry Donnelly, and subsequently Miss Dawne Anderson, the then Director of Projects consulted with her about the first claimant's suitability for the post. The Tribunal noted that neither Mrs Lawlor nor Mr Donnelly nor Ms Anderson made any note about the remark and Mrs Lawlor's concerns; nor was it raised by either Ms Anderson or Mr Donnelly during the course of a meeting, with the first claimant, as set out below, which was held later in September 2002 to discuss the reasons for the refusal to appoint the first claimant by the respondent, and at which meeting both Ms Anderson and Mr Donnelly were present. The Tribunal is satisfied that, during the course of the consultation by Mr Donnelly and/or Ms Anderson, following receipt of the details of the PECS Check, Mrs Lawlor did refer to the remark; but that she, given this context, chose to put a sinister meaning on the remark, which the Tribunal is satisfied was merely a reflection by the first claimant of the previous difficulties that he had encountered in obtaining employment. The Tribunal is satisfied that, if this remark had been a matter of concern to either Ms Anderson or Mr Donnelly, it would have been raised during the course of the September meeting.
In the circumstances, the Tribunal is satisfied, that the remark was not a relevant factor in the decision of the respondent not to appoint the claimant, following the receipt of the PECS Check details.
"11 Breach of Policy Procedure
11.1 Any breach of this policy or of the procedures laid down in the recruitment and selection procedures (para. 12) in operation from time to time is not acceptable, [and] will be treated as misconduct under the Simon Community's Disciplinary Code.
………….
NB No offer of employment will be made until satisfactory reference and/or medical or criminal reports, as necessary are received. It will be at the panel chair's discretion, whether to reconvene or to consult the other panel members when such delayed reports are received. If suitability is doubted as a result of such reports, the other panel members should be consulted as to whether or not employment should be made.
12.9.5
When the panel come to marking the individual interview assessment form for each candidate, they will arrive at a preferred order of suitability for each candidate. There will be a strong presumption in favour of the candidate with the highest performance across the panel, but it need not necessarily be the case that the highest scoring candidate is appointed.
The panel's decision must however derive from clear reasons based on the observable or ascertainable facts. These must be clearly recorded since under the law an employer can be required to justify the reasons for a particular decision. The Simon Community Northern Ireland's interview records will be retained for six years from the date of interview.
…"
It will be necessary to refer, elsewhere in this decision, to the said respondent's recruitment and selection policy and procedures and, in particular, the circumstances in which they came to be discovered during the course of these proceedings. However, in both the case of the first and second claimant, each claimant was chosen, at the end of the interview process as the most suitable candidate.
No record was kept by him or by Ms Anderson of any discussions that took place between them, prior to Ms Anderson taking the decision. In addition, no records were made or notes taken by Ms Anderson in relation to the reasons for her said decision.
To the respondent's credit, such a meeting was arranged. This meeting was attended, on behalf of the respondent by Ms Anderson and Mr Donnelly. The claimant attended, and was accompanied by Mr Mike Ritchie, the Director of Coiste na n-Iarchimí (Coiste), the National Network of Republican Ex-prisoners and Family Members; and who, in his capacity as Director of Coiste, had taken a keen interest in the decision made by the respondent, in relation to the first claimant's application for appointment to the said post.
There was no dispute that this meeting was not considered, by any person attending, as an appeal from the said decision or an opportunity for reconsideration by the respondent of its decision. It was recognised, by all persons attending the meeting, that the decision had been taken by the respondent and would not be altered, regardless of what was said during the course of the meeting.
Ms Anderson, who gave evidence to the Tribunal, produced a set of notes of the meeting compiled by her; but it was limited in detail and was compiled not at the time of the meeting but within a few days of the meeting. Mr Donnelly compiled notes at the time of the meeting, which he subsequently had typed up; but he did not give evidence to the Tribunal. Mr Ritchie, who also gave evidence to the Tribunal, compiled notes at the time of the meeting; which he then set out in a more expanded and detailed form shortly after the meeting.
As can be expected, where notes are taken by participants during the course of their discussions at a meeting, there were differences and inconsistencies between the various sets of notes. None purported to be a verbatim note of what had taken place. However, this was the only available written record, from which it was possible for the Tribunal to attempt to reach any conclusion as to the precise reason for the respondent's decision. These notes therefore took on a greater importance and relevance than might otherwise have been the case if the reasons for same had been recorded at the time when the decision was taken.
The booklet gives specific guidance [see para. 10 - 1996 version; para. 12 - 2001 version] on how to interpret and use the information provided.. It makes clear the service thereby provides information which has to be interpreted. In particular, before making any final decision it requires an employer to:-
(i) check the applicant's identity against the identity details the record provided;
(ii) discuss the matter with the applicant and (Tribunal's emphasis) ask him to confirm its accuracy;
(iii) consider the significance of the information in the light of the duties and responsibilities of the particular post.
It further requires the employer to consider each individual case on its merits.
It acknowledges that "in some cases this will be relatively straightforward, for example, an applicant with convictions for sexual offences, violence, or drug offences is unlikely to be suitable for work with children or adults with a learning disability. However, examples such as this will be relatively rare and it is much more likely that you will have to exercise careful judgment about the significance of the information".
It makes reference to some matters which should be borne in mind when exercising such judgment including:-
(i) failure of the applicant to disclose the information before the check is made;
(ii) ensuring the precise nature of the information is understood;
(iii) the nature of the job;
(iv) the frequency of offending - pattern of offences giving greater cause for concern.
In such circumstances, the Tribunal was satisfied that the respondent was entitled to require such a check be carried out; and further that the necessary application had been made to the relevant Unit of the Department of the Health & Social Services to use a PECS Check in relation to the employment of a person to fill that post and the application had been accepted for such a check to be carried out whenever such a post had to be filled by the respondent.
In seeking such a check the respondent also relied on the fact that it was contractually bound to do so, arising out of contract with the North & West Belfast Health & Social Services Trust for the housing of care leavers who would be aged between 16 and 18 and considered to be particularly vulnerable. However, it became clear, during the course of the evidence at the hearing of these proceedings, whilst there was such a contractual requirement between the respondent and the Trust it did not, at the relevant time, apply to the Falls Road premises where no such care leavers were then housed; albeit it was envisaged, and the subject of some negotiation at the time, that three beds which were at that time the subject of that contract at premises on the Saintfield Road were to be transferred to the Falls Road premises during 2001. In fact, this subsequently occurred. Thus, at the relevant time, there was no such contractual requirement. Indeed, if this contractual requirement had been the only justification for the PECS Check, then the Tribunal would have had to consider the matter further. It was less than satisfactory that the witness statements provided by the respondent, prior to the commencement of these proceedings, referred to a contract which subsequently was found did not in fact require the claimant to carry out such a check, at the relevant time, in relation to the Falls Road premises. However, the Tribunal is satisfied that this was an over-sight, having regard to the series of "back-to-back" contracts entered into between the respondent and the Trust. It also noted that reference had been made, in the witness statements, to the ongoing negotiations; which did in fact result in the transfer of the said beds to the Falls Road premises in 2001.
Given the ability of the respondent to seek a PECS Check for this post, under the system operated by the Department of Health & Social Services, as set out above, the Tribunal did not consider that any issue arose in relation to the claim of the first claimant from the failure by the respondent, at the relevant time, to have any contractual obligation to make such a PECS Check. In addition, the Tribunal noted the consent of the first claimant to the said PECS Check.
In making the decision to withdraw the offer of employment, Ms Anderson considered the application form, the consent to PECS Check form and the details of the convictions received on the PECS Check.
The respondent had, at the time Ms Anderson made her decision, the references which had been obtained in relation to the first claimant, following his application; but Ms Anderson did not take account of anything stated therein.
Ms Anderson did not consider any record that had been made relating to the short-listing/interview process, which had resulted in the respondent making the offer of employment, as set out in the letter of 4 August 2000. Further, she did not consult, before taking her decision, with either any member of the interview panel or the Chair of the interview panel either about what had taken place during the interview process or, in particular, the information received following the PECS Check; nor did she discuss with the first claimant the information received following the PECS Check.
In the absence of any document or record made by Ms Anderson at the time she took the decision to withdraw the offer of employment, the Tribunal took particular account of what was said during the course of the meeting on 19 September 2000. This meeting took place very shortly after the decision had been taken and notified to the first claimant. It was a meeting, although sought by the first claimant, which gave the respondent an opportunity to explain why it had been decided to withdraw the offer of employment. Further, it was a meeting about which there was some record in writing, albeit not a verbatim record. In concluding what had taken place at the meeting, the Tribunal considered all the notes produced in evidence relating to this meeting; including, in particular the notes of Mr Donnelly, both the hand-written notes taken at the time of the meeting and the typed up version, but also the hand-written notes taken by Mr Ritchie in the course of the meeting together with his expanded notes made on 20 September 2000. The Tribunal took account of Ms Anderson's notes, but it had to be noted that, unlike Mr Donnelly and Mr Ritchie, she had not taken any notes during the course of the meeting. The notes that she did make were made some few days after the meeting, based on her memory of what had taken place. She did not look at the notes of Mr Donnelly when preparing her own notes. In addition to the said notes, the Tribunal also took into account the evidence of the first claimant and Mr Ritchie, but also Ms Anderson, during the course of the hearing of this matter.
However, the Tribunal did find the following matters of some assistance and significance.
At the outset of the hearing, Ms Anderson referred to two principal matters, in the context of her consideration of the claimant's convictions and her decision to withdraw the offer of employment for the reasons, set out in the letter of 4 September 2000, relating to the respondent's unwillingness to employ staff who might directly or indirectly place the resident group at risk. These matters were, firstly, that the respondent had had prior difficulties with paramilitaries attempting to gain access to projects and residents and secondly concern about the inference the first claimant might have over vulnerable people, namely the residents of the said hostel.
It is clear, from the notes, that the first claimant disputed these matters relied on by Ms Anderson. Although it was known by all parties attending the meeting that this was not an opportunity to overturn the decision or for any reconsideration of the decision, it seems a discussion did develop about these concerns; and, in particular, the first claimant, together with Mr Ritchie, sought to challenge the connection which Ms Anderson was making between the first claimant's convictions and her said concerns.
In the Tribunal's opinion, as a result, the meeting developed into a discussion of various specific issues and also examples arising out of the first claimant's challenge of the said connection made by the respondent.
The Tribunal also noted that the two principal matters, referred to above and relied upon by Ms Anderson in making her decision, are also reflected in the replies of the respondent to the Notice for Particulars dated 13 May 2004, on foot of an Order of the Tribunal dated 6 April 2004 in which it was stated, in relation to the concerns the respondent had about the influence of the claimant over vulnerable people, as follows:-
"The respondent was concerned that the applicant being a person with a conviction for membership of a proscribed organisation and convictions for possession of firearms and ammunition might seek to influence the views of vulnerable residents that the use of violence for political ends was acceptable. Furthermore, the respondent was concerned that the applicant might continue to have contact with practising paramilitaries who might put pressure on the applicant in order to gain access to residents, for example, for the purpose of administering punishment beatings, intimidating or of making threats against such residents. Various threats have been made in the past to residents of Simon Hostels by paramilitaries on both sides of the political divide".
The Tribunal does not believe Ms Anderson considered the first claimant himself posed a physical threat to residents, albeit she was not prepared, in evidence, to totally rule this out; and contended, in evidence, she had concern about the first claimant's potential, given his violent past, as exemplified by his convictions, to continue to be violent. However, if this was a real and significant concern, the Tribunal is of the opinion that this would have been reflected in her notes or those of Mr Donnelly as a matter of concern to her. This was not the case and also, as set out in the above replies to Particulars, no such specific concern is expressed by the respondent.
Further in the said replies, at paragraph 2 thereof, in referring to the respondent's reliance on Article 2(4) of the 1998 Order, the respondent stated:-
"… The respondent considers that it's 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".
A further issue arose about a reference in the notes to the possibility of the first claimant being given employment "in a neutral area". There was a dispute between the first claimant and Mr Ritchie as to who had raised this issue first - the first claimant or the respondent. On balance, the Tribunal came to the view this issue was raised by the first claimant. He was aware, from the outset of the meeting, that his application for employment at the hostel at 414 Falls Road had been decided and that it was not going to be reconsidered by the respondent. In such circumstances, the Tribunal came to the conclusion that it was likely that the first claimant would have been anxious to see whether there was any chance of employment anywhere with the respondent in the future or whether he was, in essence, permanently barred arising out of his convictions. The Tribunal again noted that there was a reference to this to be found in Mr Ritchie's notes made at the time of the meeting. There was also a limited reference in Ms Anderson's note, albeit made some days after the meeting, to the first claimant and Mr Ritchie asking for the decision to be reconsidered and employing the first claimant elsewhere than in the Falls Road Hostel. In light of the foregoing, the Tribunal is satisfied that Mr Donnelly did make some reference to the possibility of the first claimant being employed in a neutral area - but that it was in the context of the first claimant raising the issue of a future application and not this particular application for employment. The Tribunal was not surprised that Mr Donnelly had made no reference to this matter in his notes, since, as set out above, the possibility of future employment of the first claimant, in whatever area, was not directly relevant to this particular application for employment, which was the subject matter of the meeting.
The meeting, from the notes taken by the various participants, appears to have been wide-ranging and not strictly limited to informing the claimant of the specific reasons, for the decision of Ms Anderson; but developed, as she indicated those reasons, into a much wider debate in relation to those reasons. This led, in the Tribunal's view, into a wider debate/discussion about difference scenarios. For example, there appears to have been a discussion, in this context, of what the first claimant might do faced with a situation about paramilitaries coming to the door and how he would react. In particular, it would appear from Mr Donnelly's notes that he raised the scenario that "the first claimant would probably have ex-colleagues, who are still involved with paramilitaries, who may put pressure on him to access the project and residents". Mr Donnelly further asked the first claimant how he would deal with the situation where someone arrived at the door demanding access to individuals to beat them. The first claimant said he would discuss the matter with whoever was at the door and say to them that they can't deal with the matter here on project and would have to do it on the street. Such a discussion about paramilitaries coming to the door of the hostel was also reflected in Mr Ritchie's notes. Indeed, use of the expression "on the street" was also found in Ms Anderson's notes of the meeting. There was some dispute, during the course of the hearing, about what was meant by the reference to "on the street"; but the Tribunal has no doubt that there was the discussion along the lines suggested above to illustrate the concerns the respondent had about the first claimant.
Consistent with Mr Donnelly's reference to timescales, Ms Anderson made it clear that, in reaching her decision, she relied on the fact that the claimant, having been released on license in or about 1996, at the time of his application had not been released for a very long period albeit she accepted his convictions were some twenty years previous.
Ms Anderson maintained that her decision to withdraw the offer of employment, due to her said principal concerns for the vulnerable residents of the hostel, was related solely to the serious convictions revealed to her by the information received from the PECS Check. However, the Tribunal, having considered not only the notes of the meeting of the 19th September 2000 and what was stated in the course of that meeting, set out above, but also, and in particular, the evidence of Ms Anderson to the Tribunal, came to the conclusion that it was not merely the convictions themselves which were central to her decision but also the additional element of paramilitary involvement in each said conviction and the relevance of that additional element in coming to the decision that she did. This was apparent, in particular, from the reference in the course of the discussion at the meeting to the first claimant being in a segregated block in Long Kesh/his association with people of like mind.
Ms Anderson did not seriously dispute that these convictions of the first claimant had a paramilitary element and that such paramilitary involvement was undoubtedly from a Republication perspective rather than a Loyalist perspective; though it is also correct to state that at all times Miss Anderson made clear, and the Tribunal accepts, that if the PECS Check had revealed a similar set of convictions, with paramilitary involvement, but from a Loyalist perspective, she would have taken the same decision. Throughout her evidence, she laid great stress not only on the convictions but significantly the paramilitary element in those convictions. By way of illustration/example the Tribunal refers to the following extract from Ms Anderson's evidence to the Tribunal. In so doing, the Tribunal accepts such extracts can only be a "snap shot" of the evidence given by her.
" ……..
The Chairman:
If you had somebody with a conviction for murder – [I] use the phrase advisably, in an old fashioned styled murder, would that have been a problem to you?
A. I think we would have considered each offence or conviction on its own merit. Potentially it would have been a problem, but we would have considered it on its own merit.
…….
The Chairman: was there an ingredient in this case which made it different?
A. Well it was the seriousness of his convictions that made it different, as well as the paramilitary element to his convictions".
" …..
Q. So crucial to your decision that Mr McConkey posed this particular risk [sic accessing residents for the purpose of paramilitary beatings] was the fact that he was a Republican paramilitary and had those convictions?
A. Again it was because he was a paramilitary, and I would reiterate if he had been a Loyalist paramilitary it would have been the same decision.
……."
" …..
Q. So you believed that because he was a Republican and some Republicans supported paramilitary beatings, he might potentially be one of those types of Republicans?
A. Based on the seriousness of his offences we …… or I yes believe that.
Q. You believed that because he was a Republican paramilitary he might have facilitated punishment beatings of persons within the hostel?
A. Again because he was a Paramilitary he may have facilitated that, but if he had been a Loyalist or Republican my concerns would have been the same.
…….."
" …..
A. The basis of the decision was the serious nature of his convictions and the paramilitary nature of his convictions and how that could potentially influence residents who were coming to Simon community or residents already staying within Simon community and there was a risk that he would be known in the area, and therefore residents or potential residents would not feel safe.
The Chairman:
The risk that he would be known, what would be known? You say there was a risk that he would be known in the area – what are you saying that they would know?
A. That his offence and the nature of any of his offences would be known in the area, paramilitary offences.
" …..
A. … Paramilitary offences, the nature, the paramilitary offence was key to the decision, whether it was republican or loyalist it would have been the same".
" …..
Q. In terms of the suggestion that he might seek to influence residents for the use of violence for political ends, again that is to do with the political element of the offending. Someone who had a conviction for murder that had no connection with paramilitaries, terrorism, political offending, whatever phraseology, I am not trying to put you into a box, you wouldn't have been concerned about that risk, that risk was because of those elements of the offence?
A. The paramilitary nature of the offences?
Q. Membership of the proscribed organisation?
A. Whether Loyalists or Republican.
Q. The issue about him being well known in the area, that was also about the fact that he had the particular type of convictions that amounted to the use of violence for political ends. Can I suggest to you that politics had everything to do with the decision, whether it was republican or loyalist, politics had everything to do with the decision?
A. Politics was an element of the decision. The serious nature of the offences in tandem with the paramilitary end of it was both a factor".
………."
" …….
Q. And do you understand that, if someone describes themselves as republican, what they are saying is I have a certain set of political beliefs that it is what they are communicating. If I say or someone in the room says I am a Unionist, I am a Nationalist, a Republican or Loyalist they are communicating a set of Political beliefs.
A Yes.
Q. Do you except that the paramilitary or terrorist offences of the type that Mr McConkey was convicted of are offences using violence for political ends?
A. Yes.
Q. That is effectively accepted by the respondent is that right [sic in the replies of particulars set out at paragraph 7.20 of this decision] because that was one of your concerns that the applicant being a person with a conviction for membership of a prescribed organisation and conviction for firearms and murder that he might [think to] use violence for political ends was acceptable?
A. Yes.
………
Q. Do you accept that, in those circumstances, … when dealing with paramilitary or terrorist offences, the terms have been used interchangeably, that an element of the motivation is political. Clearly there are offences of violence and nobody is asking you to condone or anything like that, but an element of the motivation carrying out such offence is political. That is what offences involving the use of violence for political ends is intending to convey?
A. Yes when I got…..when I got a record of Mr McConkey's convictions they were convictions.
…….."
" …..
The Chairman:
What difference, if any, do you see between that, and what happened in this case, being revealed that it was an ordinary murder, which is a serious crime and serious violence?
…..
Would there have been any distinction?
A. I think the added element of the paramilitary involvement with the offences.
….."
Ms Anderson suggested that, although no record was kept of her reasons, she had agreed to meet the first claimant, following his request for a meeting. She accepted, however, that if she had not done so no further explanation for this decision would have been recorded or provided. Ms Anderson would not accept in acting, as set out above, she acted in breach of the respondent's procedures and policies; but rather maintained, in a description the Tribunal considered was an attempt to avoid using the word breach, despite what she clearly accepted had taken place, that she had "stepped outside" of the policy and procedures. In doing so Ms Anderson was fully aware that the respondent's policy and procedures provided that a breach of the policy and procedures was not acceptable and would be treated as a disciplinary offence [See paragraph 11.1 of the respondent's policy of the procedures set out in paragraph 7.10 of this decision].
Further, Ms Anderson indicated that not every meeting headed by her or decision taken by her would be recorded.
Following the making of these claims by both claimants, the respondent made amendments to its recruitment and selection procedures, pending the determination of these claims. However, the Tribunal noted that, although these procedures had been amended, the panel and in particular the Chair still retained the decision making role, following any receipt of information as a PECS Check, albeit after consultation with the Human Resources Director/Manager.
The Tribunal noted, that prior to the cross examination of Ms Anderson, there was no admission by her that, in taking the decision herself, she had, as she put it, "stepped outside the respondent's policies and procedures".
In addition, he stated he was a supporter of the Peace Process; and as a member of Sinn Fein he canvassed in order to persuade people to vote for the Good Friday Agreement; and that, although he supported the idea of a 32 county republic, he did not support the use of violence as a means of achieving that political objective. In particular, he stated, at the time he applied for the post, he did not support the use of violence for political ends. He also made clear that he had never supported the use of punishment beatings. This evidence was not the subject of any challenge by the respondent. As seen above, Ms Anderson at no time, prior to making her decision, discussed with the claimant any such matters following the receipt of details of the convictions, following the PECS Check.
"Have you ever been convicted of a criminal offence which cannot be considered "spent" under the Rehabilitation of Offenders (Northern Ireland) Order 1978? Yes/No.
If yes, give details".
He put a tick under no.
He also stated in his application form under "additional information" the following:-
"I was in prison from 27 April 1992 until October 1998, when I was released under the Good Friday Agreement".
He stated in the body of the form:-
"April 92
Crumlin Road Court August/September 1993
Conspiracy and possession with intent
Sentenced to 15 years".
Following the said interview, the second claimant was chosen by the panel as the successful candidate; and the respondent's Head Office in Belfast was so notified by Sister Helena. By letter dated 7 June 2002, the second claimant was informed by the respondent that references and pre-employment checks would now be requested and the respondent would be in touch in due course. No offer of employment was made to the second claimant at this stage.
The second claimant was released pursuant to the terms of Section 3 of the Northern Ireland (Sentences) Act 1998. This Act, which was made under the aegis of The Belfast Agreement, which is also known as and referred to as The Good Friday Agreement, provided for the release of prisoners by the Life Sentence Commissioners in circumstances where an applicant satisfied certain specified conditions. One of the conditions an applicant was required to satisfy was that, if he was released immediately, he would not be a danger to the public. In releasing the second claimant, as it did, the Life Sentence Commissioners were therefore satisfied the relevant conditions had been fulfilled and, in particular, were satisfied that he would not be a danger to the public.
"Pre-employment references and checks have now been received. I regret to inform you however, that following receipt of these, I am unable to offer you a position as night worker.
…".
The Tribunal is also satisfied that, prior to the second claimant applying for the post, Mr Toner had been approached by Mrs Marks to seek his advice about her husband applying for the post of night worker at the Newry hostel, given the fact that he had these previous convictions; although, the detail of them was not spelt out during the course of this conversation. Mr Toner, in response to Mrs Marks, had encouraged the second claimant to apply.
There was no evidence Sister Helena, who did not give evidence to the Tribunal, considered the second claimant was a threat to the residents of the hostel; and indeed, the Tribunal did not believe that either Sister Helena and/or Mr Toner as responsible managers would have made the second claimant the successful candidate, if either had had any such concerns following the interview. Both Sister Helena and Mr Toner had seen the information set out by the second claimant in his application form and the consent to PECS Check form; during the course of the interview neither of them asked the second claimant about what he had stated or asked him to expand on same. If either had had concerns the Tribunal is satisfied that they would have asked further about these matters. In addition, the second claimant was asked, during the course of the interview, whether in appropriate circumstances he would be willing to call the PSNI to the hostel, if required. He answered that he would have no objection. In addition, at the end of the interview, there was some general discussion relating to The Good Friday Agreement and its aftermath in which the second claimant stated he indicated his support for the Agreement.
Neither Sister Helena, as Chair of the panel, nor Mr Toner were consulted about the information received on foot of the PECS Check, before he was sent the letter dated 18 July 2002, informing him that the respondent was unable to offer him the position of night worker. In addition, following the interview and before receipt of the said letter, the information received by the respondent, following the PECS Check, was not at any time discussed with the second claimant by any person involved in the said decision not to offer him the said post.
Following receipt by the respondent of the second claimant's PECS Check report, it was first looked at by Ms P Baldrick, the Human Resources Officer, in the absence on leave of Brian Clarke, the then Human Resources Manager. The Director of Projects for the Newry Region, Fergal Lynn was also on leave, due to illness. In the circumstances, the matter was referred to Ms Dawne Anderson, the Director of Projects in Belfast (and who had taken the decision in relation to the first claimant). In this capacity but also with her knowledge of the hostel in Newry, she confirmed to Ms Baldrick, and subsequently to Mr Clarke on his return from leave, that the Newry Hostel housed vulnerable residents and it also, pursuant to a contract between the respondent and the Newry & Mourne Health & Social Services Trust, housed a bed for a care leaver, who would also be considered a vulnerable person.
"1. The applicant was not offered the post of night worker. The decision not to offer the post to the applicant was taken on the basis of the information contained in the pre-employment check which revealed that the applicant had a number of previous convictions including conspiracy to murder.
2. The decision not to offer the post to the applicant was taken by Brian Clarke, Human Resources Manager (perceived religious affiliation Protestant) having consulted Carol O'Bryan (perceived religious affiliation Protestant) and Dawn Anderson, Director of Accommodation and Resettlement (perceived religious affiliation Protestant).
3. The respondent consulted its solicitor prior to reaching decision not to offer the post to the applicant.
4. The nature of the applicant's previous convictions and their recency, coupled with the vulnerable nature of the resident group with which the Simon Community works were taken into account and were the prime reasons for the decision not to offer the post to the applicant.
5. … Given the nature of the applicant's convictions and the vulnerable nature of the residents of Simon Hostels, it was felt that the applicant who had conspired to commit acts of violence including conspiracy to murder for political ends as a reason for not employing the applicant is therefore protected by the provisions of Article 2(4) against the finding of discrimination on the grounds of political opinion".
Despite what was stated in the said reply, as set out above, that the decision was taken by Mr Clarke, after consultation with Ms O'Bryan and Ms Anderson, the Tribunal is satisfied that the person who, in reality, took the decision was Ms O'Bryan, the Chief Executive; albeit in consultation with Mr Clarke, who was in full agreement with her decision. Mr Clarke, in evidence, suggested, again despite what was stated in the reply, it was a joint decision between him and Ms O'Bryan. However, it must be remembered that Mr Clarke, who was the Human Resources Manager, was at a level of management below director level and in fact equivalent to that of Sister Helena; albeit in fairness, at the relevant time, Mr Clarke was acting in the role of Human Resources Director, as the then Human Resources Director Helen Hughes was on sick leave. Although Mr Clarke suggested that it was a joint decision between him and Ms O'Bryan, in the Tribunal's view Mr Clarke's involvement was, in essence, to "rubber stamp" the view taken by Ms O'Bryan not to offer the second claimant employment in the said post.
During the course of Ms O'Bryan's cross-examination in these proceedings, it became apparent that, in addition to the persons referred to above, Ms O'Bryan had also consulted with the Chairman of the Board of Directors of the respondent, Mr Lindsay Conway; though this was at no time stated in the said replies or prior to the cross-examination. Ms O'Bryan was not able to give any explanation for this failure to refer to Mr Conway's involvement before then. It was clear that Mr Conway gave her the necessary authority to deal with the matter in the way that she ultimately did.
Ms O'Bryan denied that the conduct of the claim of the first claimant and/or how it had been dealt with by Ms Anderson at the time had any bearing on her decision in this case. The Tribunal could not accept that denial; in circumstances where she, as the Chief Executive of the respondent, must have been fully aware of the potential implications for the outcome of the first claimant's claim, if a different decision was taken in relation to the employment of the second claimant, given the self evident similarities of both matters.
She further acknowledged that she had not discussed the information received with the second claimant, despite the terms of the consent to PECS Check form and the 'Making the Right Choice' document; nor despite the terms of the recruitment and selection procedures had she referred the information to the members of the interview panel or discussed it with them and in particular the Chair of the panel; but had decided to make the decision herself, in consultation with Mr Clarke, after discussing what she was doing with Mr Conway and had thereby removed any involvement of the panel in the decision. Under the respondent's recruitment and selection procedures (see paragraph 12.8.3) following such a PECS Check it was for the panel Chair's discretion whether to reconvene or to consult the other panel members when such a report was received. If suitability is doubted as a result of such a report the other panel member requires to be consulted as to whether or not employment should be made. Neither Sister Helena and/or Mr Toner were given the opportunity to deal with the above matters or even to make their views known.
She accepted that she knew that Ms Anderson, in taking her decision in relation to the first claimant, had not followed the procedures, whether that was described as a "step outside the procedures" or a breach of the procedures; and that in taking the decision that she did, she was equally not following those procedures. She acknowledged that, neither in the replies to Particulars or indeed her direct evidence to the Tribunal, as set out in her witness statement, had she made any reference to this failure. Whilst denying that this was an attempt to mislead the Tribunal, she could not give any explanation for doing so; other than this was what happened and she considered, in the circumstances, she was entitled to act in the way that she did, having obtained the necessary authority of Mr Conway. She also suggested that these circumstances were exceptional, albeit she acknowledged that they had also arisen in not dissimilar circumstances in relation to the first claimant; but this was a decision which required to be taken by her, not by the interview panel, who were managers. To allow them to take the decision would have placed an unfair burden on them; she believed that in such circumstances it was for senior management, such as herself, to take the decision, despite the terms of the respondent's recruitment and selection procedures, as the decision had implications for the whole organisation in how to consider the risk to vulnerable residents in light of details of such convictions, as revealed in the PECS Check.
In this context, the Tribunal noted that, in her witness statement, Ms O'Bryan, after stating that she had concerns about the second claimant, given his said convictions, working with the Newry Hostel's vulnerable residents and the influence he might therefore have on them also raised an issue about the respondent's homeless service in Newry; and, in particular, its proposed development of operations which had been a contested political issue in Newry. One element of this opposition was on the part of Sinn Fein. Ms O'Bryan, on the basis of what she knew about the claimant, as set out above, and in particular his said convictions, accepted in evidence she had taken the view that the second claimant would have been supportive of such opposition. In so doing, and relying on this issue in deciding as she did, the Tribunal came to the conclusion this further emphasised that she had made the assumption that his convictions, were paramilitary convictions and from a republican perspective. In the Tribunal's opinion, such a perspective clearly had to involve a political element.
Ms O'Bryan, having regard to the severity of the crimes, of a paramilitary nature, committed by the second claimant, believed that he had at that time stepped over the line in terms of how a person related to the world and what was acceptable.
Indeed, under paragraph 10.5 of the new procedures, it provided 'no offer of employment will be made until satisfactory references and/or medical or PECS reports as necessary are received'. At all times, the Chair [the Chair of the interview panel] must consult with the Director of Human Resources or the Human Resources Manager, where a report is returned indicating unsuitability for employment'.
Ms O'Bryan accepted that, even under the new procedures the Chair of the interview panel would still take the final decision, albeit after consultation with the Director of Human Resources or the Human Resources Manager. Even under the new procedures, which were not in operation at the time of either of these claims, the final decision would still not be taken by someone in the capacity of Ms Anderson or indeed Ms O'Bryan.
Ms O'Bryan could give no explanation for the failure to record her reasons for not making an offer of employment to the second claimant, other than she had not thought to do so in what she described, as set out above, this rare occurrence/extraordinary circumstance. She did not dispute that the respondent's policy and procedures made reference, as set out above, to the recording of decisions and the keeping of records.
"Both sexes must be represented on the panel as must individuals from both political/ religious traditions in Northern Ireland".
The Tribunal was concerned that political and religious traditions appeared, in the said procedures, to be interchangeable and further to make an assumption that a person with a certain religious tradition would also hold a certain political opinion. The Tribunal could not accept that this would always be the case. Certainly, in relation to the second claimant, if the issue for determination had related to that of religious belief, the fact that no-one involved in relation to the final decision was Catholic might have been a significant factor; but, as this claim related to political opinion, the Tribunal did not consider any such failure to consult persons of a different religion, in light of the Tribunal's concerns, set out above, about the terms of the procedures themselves, was relevant in determining these matters.
In the case of the first claimant, it is also correct to record that Ms Anderson did consult with Mr Donnelly, a Catholic.
During the course of the interlocutory process in these matters, in relation, in particular, to the discovery process, the respondent only discovered to the claimants' representative the first three pages of the respondent's recruitment and selection policy and procedures. In doing so, the entirety of Section 12 was omitted. Section 12 set out, as outlined elsewhere in this decision, the steps which the respondent was required to take under the said procedures where a PECS Check was required and report received; and which the respondent failed to do, as set out in the facts relating to both claims, found by the Tribunal.
There can be no doubt, and this was not seriously disputed by the respondent's witnesses, that the whole of the document was relevant and properly discoverable. Indeed it came within the terms of the various requests for Discovery. It appears that when the said document was so discovered it was done so by Mr Clarke in his capacity as Human Resources Manager, supplying the relevant documentation to the respondent's representative for onward transmission to the claimant's representative. It has to be remembered that Mr Clarke was directly involved in the decision taken in respect of the second claimant; and was, in his capacity as Human Resources Manager, also involved in the defence of the claim brought before this Tribunal by the first claimant.
At first, the Tribunal was prepared to consider that, in failing to discover the said pages, this may have resulted from some inadvertence/confusion on the part of Mr Clarke about what was to be discovered. However, it is clear that this is all one document, including both the relevant policy and procedures. Thus, the scope for confusion was limited. In addition, it further became clear that what was discovered did not in fact include the full first three pages. On the last page discovered the following line had been omitted:-
"11 BREACH OF POLICY PROCEDURE"
Significantly, the last line of this page, and beneath the words omitted, "recruitment and selection" remained intact. For this to have occurred suggested to the Tribunal that the omissions were the result of a deliberate act and were not accidental.
The Tribunal could see no proper basis upon which the third page had come to be discovered by Mr Clarke, without the missing words. Mr Clarke was unable to give any satisfactory explanation, save to suggest there were different versions of the document in existence. However, no version of the document, with the words so missing, was ever produced to the Tribunal. In the Tribunal's view, to discover the document in the above format, with the words missing, as set out above, had to have been a deliberate act on the part of Mr Clarke. Section 11 related to breach of the procedures, which, in view of the facts as found by the Tribunal, as set out above, was of particular significance in these proceedings. The claimants were not aware, prior to commencement of these proceedings, of the contents of Section 11.1, relating to breach of procedures, and referred to previously in this decision. Equally, they were not aware of the various provisions set out in Section 12 of the said procedures and in particular Section 12.8.3 (N.B.) referred to previously in paragraph 7.10 of this decision.
Indeed, it was only in the course of a previous hearing of this matter, which subsequently was unable to proceed, that the above omission was revealed. Ironically, it was revealed during the course of the cross-examination of Mr Toner by the respondent's representative. The respondent's Counsel, on becoming aware of the above omissions, correctly and properly immediately made available the missing pages to the claimants' representatives.
In the Tribunal's view, it is not an exaggeration to state that, if these documents had not emerged, as set out above, that this omission might have been a very significant and relevant factor in the way in which these claims were heard by this Tribunal and how the claims might have been determined. The respondent's failure to follow their own procedures, as became clear in the course of these proceedings, is a significant and relevant factor in the Tribunal's determination of these claims. The significance of Mr Clarke's actions in deliberately omitting these pages is not only of relevance to the claim of the second claimant in which Mr Clarke played a direct part; but it was also relevant to the defence by the respondent of both claims, in circumstances where Mr Clarke was fully aware that both claims had been consolidated and that common issues of fact and law relating to both claims were going to have to be determined by this Tribunal.
The Tribunal was satisfied in both cases that if each claimant had had paramilitary convictions from a loyalist perspective rather than a republican perspective, as the Tribunal found to be the case, then the respondent in each case would have taken a similar decision. The respondents submitted that the relevant hypothetical comparator was a loyalist paramilitary with similar convictions to those of the claimants and as the respondent would have taken the same decision, whether it had been a loyalist or a republican paramilitary, the claims of the claimants must fail. The Tribunal is of the opinion that this not the correct approach; and indeed would require the Tribunal to follow the approach rejected by the Northern Ireland Court of Appeal in the case of Smyth -v- Croft Inns [1995] N.I. 292. Hutton LCJ, as he then was, stated at page 305 (d-g) in the said case as follows:-
"If any employer owned a bar in a Protestant neighbourhood, patronised by Protestants, in which he employed a Roman Catholic barman, and a second bar in a Roman Catholic neighbourhood, patronised by Roman Catholics, in which he employed a Protestant barman, and that the employer dismissed both barmen on the grounds that the customers in the respective bars did not like being served by a barman of religious belief which differed from their own, then on the appellants argument the employer would not be guilty of religious discrimination because he did not treat either barman less favourably than the other. I consider this argument as fallacious. In my opinion, the employer will be guilty of religious discrimination against both barmen".
In the case of Shamoon, which considered similar provisions under the Sex Discrimination (Northern Ireland) Order 1976, to those contained in the 1998 Order, Lord Nicholls gave some helpful guidance, which was recently followed by Mr Justice Elias (President) in the EAT decision of Brown -v- London Borough of Croydon and Johnston (unreported 28 February 2006).
Mr Justice Elias stated:-
"Often when dealing with the question of the hypothetical comparator, it is both difficult and artificial to separate out the two limbs of less favourable treatment and the reason why".
In the case of Shamoon, the applicant was a Chief Inspector who was female complained that on grounds of sex she had been denied the right to complete appraisals for junior staff. The employers contended the reason she had been denied the right to carry out these appraisals was because there had been various complaints about the way she had done this, and that her male comparators had not been subject to the same complaint.
Lord Nicholls in his judgement referred to the normal two-step approach of tribunals, where tribunals firstly considered whether the claimant received less favourable treatment than the appropriate comparator then, secondly, considered whether that less favourable treatment was on the relevant prescribed ground. However, he also stated:-
"8. No doubt there are cases where it is convenient and helpful to adopt this two- step approach to what is essentially a single question: did the claimant, on the prescribed ground, receive less favourable treatment than others? But, especially, where the identity of the relevant comparator is a matter for dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
...
11. This analysis seems to me to point to the conclusion that employment tribunals might sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded the claimant on the proscribed ground, was less favourable than was or would have been afforded to others".
Although she contended that the first claimant's offer of employment had to be withdrawn, because he posed a risk, in her view, to the vulnerable residents in that hostel because of the convictions revealed on the PECS Check, the Tribunal is satisfied that it was not just the serious nature of the convictions, which was the basis for her decision, but it involved something more. It was not the convictions themselves, but the additional element of paramilitary involvement in each said conviction and further that such a paramilitary involvement was from a republican perspective. Ms Anderson, at the outset of the meeting, emphasised her two principle concerns were that, firstly, the respondent had prior difficulties with paramilitaries attempting to gain access to projects and residents and secondly had concerns about the influence the first claimant might have over vulnerable people, namely the residents of the hostel. Indeed, the precise nature of those concerns were confirmed and emphasised by the terms of the respondents' replies to particulars dated 13 May 2004, referred to in paragraph 7.20 of this decision. This conclusion was further emphasised by the extracts upon Ms Anderson's evidence to the Tribunal, as set out in paragraph 7.20 of this decision. As set out in those extracts, Ms Anderson clearly acknowledged and accepted, in the Tribunal's opinion, that she believed that the first claimant, as such a republican paramilitary might facilitate punishment beatings to persons within the hostel; and further could potentially influence residents coming to the hostel or in the hostel and there is a risk he would be known in the area and therefore residents or potential residents would not feel safe. In particular, she did not deny there was indeed a political element to her decision and that paramilitary or terrorist offences of the type the first claimant was convicted of were offences using violence for political ends. Having recognised the republican perspective, as opposed to a loyalist perspective, Ms Anderson was also clearly recognising the use of such violence for political ends was in the context of the affairs of Northern Ireland.
Ms Anderson, following receipt of the PECS Check neither consulted with the Chair of the interview panel or the panel itself and did not allow the interview panel or the Chair of the panel to play any part in the decision taken by her - despite the terms of paragraph 12.8.3 (NB) of the procedures set out in paragraph 7.10 of this decision. Further, although under paragraph 12.9.5 of the said procedures an interview panel was required to make decisions based on observable and ascertainable facts, which must be recorded, Ms Anderson having taken on the role of decision maker did not keep any record of any discussion she had in relation to the matter before taking her decision or the reasons for her decision. In this context, it also has to be noted that, regardless of the terms of the respondent's recruitment and selection policy and procedures, the Fair Employment in Northern Ireland Code of Practice 1989 makes similar provisions to those seen in the said procedures, relating to the recording of decisions and the keeping of records.
The Tribunal applying the dicta of Lord Nicholls, in the case of Shamoon, was therefore satisfied that the reason for the decision was the first claimant's political opinion, as set out above, and which, subject to the terms of Article 2(4) of the 1998 Order was a proscribed reason.
To establish a claim of unlawful discrimination under the 1998 Order, it was necessary for the first claimant to establish he had been less favourably treated and, in this case, by a hypothetical comparator. Lord Nicholls recognised the difficulty of showing who, in any given case, was such a hypothetical comparator and the potentially artificial task a tribunal is required to undertake. Indeed, the identity of the hypothetical comparator in these proceedings led to considerable discussion between the representatives. However, having decided that the reason for the decision was the first claimant's political opinion, derived from the said convictions, the Tribunal concluded that the first claimant could therefore establish that he had been less favourably treated on the grounds of his political opinion than any person who also had been convicted for similar offences but from which offences no such political opinion could have been derived. Such a hypothetical comparator would have been appointed to the relevant post.
In this context, the Tribunal noted what had been stated by Ms Anderson in relation to her decision and, particularly the convictions having the paramilitary element from a republican perspective, as set out in the findings of fact. In relation to the failures, referred to above, to follow the respondent's own recruitment and selection procedures, including the terms of the Consent to PECS Check and Making the Right Choice documents she suggested that she was entitled to do so because of the unique situation with which she was faced; and it was a decision to be taken by a senior manager rather than the interview panel. In the Tribunal's view, as set out in paragraph 7.4 of this decision, the terms of the consent to PECS Check required the respondent to fully discuss the information received. This was not done. Indeed, there was not even a check made with the first claimant to confirm its accuracy and/or his identity, as suggested by the respondent.
There was no explanation by Mr Clarke for his failure to provide proper discovery of the full contents of the respondent's recruitment and selection procedures, other than to suggest that the wording as discovered was to be found in an alternative version of the said procedures. No such alternative version was ever produced by Mr Clarke to the Tribunal.
Whilst the Tribunal does not underestimate the seriousness of the judgment which an interview panel and/or the Chair of the interview panel would have been required to make, the Tribunal was not satisfied that this justified the failure to involve the interview panel and/or the Chair of the interview panel in the decision making process in anyway following receipt of the PECS Check information and/or not to follow the relevant procedures, which were clearly breached by Ms Anderson. This may have been the first time that such a situation had arisen for the respondent, and it clearly involved difficult decisions to be taken by it, having regard to the vulnerable nature of the residents of the hostel. However, the interview panel had selected the first claimant as the successful candidate, and an offer of employment had been made to him, subject to the PECS Check, and in those circumstances the Tribunal was not satisfied that a proper explanation had been given for the failure to follow the procedures, including the requirement to have a discussion with the first claimant about the contents of the PECS report.
In the circumstances, the Tribunal was not satisfied that the respondent had discharged the necessary burden and therefore, subject to consideration of Article 2(4) of the 1998 Order, the first claimant had been unlawfully discriminated against on the grounds of his political opinion.
In the circumstances, the Tribunal was not satisfied that any proper explanation had been given by the respondent to discharge the necessary burden. Therefore, in the circumstances, subject to consideration of Article 2(4) of the 1998 Order, the Tribunal concluded the second claimant had been unlawfully discriminated against by the respondent on the grounds of his political opinion in relation to his application for the post at the Newry Hostel.
In the case of Grant Morrow -v- Sperrin Lake and Health & Social Services Care Trust (Case Reference Number 411/02FET) the Tribunal, in a decision registered and issued on 21 September 2004, was required to consider the said provision. In the case, the claimant, a Protestant and Unionist, complained he had been unlawfully discriminated against on the grounds of his religious belief and/or political opinion, when he was dismissed by the respondent as a Home Help, after a very short period of employment with the respondent. With regard to his claim of unlawful discrimination on the grounds of political opinion, the claimant accepted, as set out in the decision of the Tribunal, that his political opinion had in the past encompassed the use of violence, which resulted in his convictions in 1987 and 1997 for terrorist related crimes. He also accepted that, at the time of his convictions, his political opinion was one that believed that violence was justified. The decision further records that the claimant's evidence to the Tribunal was that, since the Good Friday Agreement, he accepted that the use of violence for political ends was not acceptable. However, the Tribunal does not appear to have made any specific findings in relation to this evidence and clearly considered it was not necessary or required to do so in order to determine the claimant's claim and, in particular the application of Article 2(4) of the 1998 Order. The Tribunal, having noted that the claim of the claimant of less favourable treatment was on the grounds of the political opinion which he held at the time (the Tribunal's emphasis) of his terrorist related convictions, which encompassed the use of violence, the Tribunal was satisfied that Article 2(4) of the 1998 Order precluded the claimant from bringing a claim of unlawful discrimination on the grounds of political opinion under the 1998 Order.
During the course of this judgment, Kerr J, made reference to the terms of paragraph 5 of the Belfast Agreement, which provided:-
"The Governments continue to recognise the importance of measures to facilitate the re-integration of prisoners into the community by providing support both prior to and after release, including assistance directed towards availing of employment opportunities, re-training and/or re-skilling, and further education".
He also noted that, under the aegis of the Belfast Agreement, the Sentence Commissioners were required to be satisfied that a prisoner applying for early release would not be a danger to the public. The issue, in essence, in this case was whether the decision of the Sentence Commissioners to release the applicant, pursuant to the Northern Ireland (Sentences) Act 1998 was a consideration to be taken into account by the licensing authority, in determining whether the applicant, under the relevant provisions, an appropriate person to hold a taxi driver's licence. Kerr J held that it was.
In the course of the judgment, Kerr J, considered the effect of the Belfast Agreement on the matter. Judge Hart had held the Belfast Agreement was aspirational only and that it could not affect one's approach to the application of the provisions of the 1998 Act. Kerr J, after referring to the decision of Lord Hoffman in the case of Robinson -v- Secretary of State for Northern Ireland & Others [2002] UKHL in which Lord Hoffman had discussed the effect of the Agreement in relation to the Northern Ireland Act 1998 stated as follows:-
"Although these observations [of Lord Hoffman in the Robinson case] were made in relation to the effect that the Agreement has on the nature of the Northern Ireland Act 1998, they reflect the importance to be attached to the terms of the Agreement in the interpretation and application of statutory provisions made under its aegis. The Agreement contemplated that mechanisms would be put in place for the accelerated release of prisoners but those prisoners who benefited from the programme would be re-integrated into the community. It appears to me therefore that particular attention should be paid to the fact that a prisoner released under the terms of the Northern Ireland (Sentences) Act 1998 has been adjudged not to be a danger to the public".
The Tribunal could readily understand the views of the claimants and their representatives, including Mr Ritchie, that in the above circumstances their previous convictions were continuing to be a bar to obtaining employment despite the terms of The Belfast/Good Friday Agreement; and that the Tribunal should, in these circumstances, interpret Article 2(4) of the 1998 Order in such a manner which would prevent the respondent relying on the Article, as a defence to the claims of unlawful discrimination brought by the claimants.
The Tribunal, not without some reluctance, concluded there was no proper basis upon which it could give Article 2(4) such an interpretation and/or insert requirements/conditions, in the face of the clear and unambiguous wording of the Article; however attractive it might have been to do so in the particular factual situation which the Tribunal found to exist in these proceedings.
The Tribunal is also aware, in the face of such clear wording, of the dangers of any such re-interpretation of the Article in the context of a particular factual situation. Indeed such dangers are emphasised in light of the concerns expressed by Kerr J in the case of In Re Treacy and MacDonald [2000] N.I. 330 at page 351 g - h when he stated - "An unscrupulous person claiming to be the victim of discrimination, on the grounds of political opinion, could adjust his professed belief in order to accuse the decision maker of inequality of treatment".
However the Tribunal is not satisfied it is for the Tribunal to make any such amendments. The statutory provision is clear and free from ambiguity. The Tribunal has no inherent jurisdiction and is limited to dealing with complaints, as set out in the specific statutory provisions, relating to such complaints (see Staffordshire County Council -v- Barber [1996] ICR 379, 395 A - G per Neill L J, approving what was said by Mummery J in Biggs -v- Somerset County Council [1995] ICR 811, 830.
In the view of the Tribunal it is therefore a matter for Parliament and not this Tribunal whether amendments to Article 2(4) of the 1998 Order should be made, and if so the terms of any such amendments, and/or whether the provision should be repealed.
Chairman:
Dates and place of hearing: 4-7 October 2005, 10 October 2005,
13-16 December 2005, 21 December 2005,
31 March 2006 and 4 April 2006, Belfast
Date decision recorded in register and issued to parties:
