Fair Employment (Northern Ireland) Act 1976
McKay v NIPSA 1995 IRLR 146
Whyed Gill v NICEM FET Dec1999
Paisley v Arts Council of NI & An Comhairle Ealaion FET July 1998
Treacy & Barry McDonald, In the matter of 2000 NIEHC 6
Among the changes brought about by the Human Rights Act 1998 is the limited protection provided against discrimination on the grounds of political opinion. Experience and cases in Northern Ireland will be of assistance in considering the scope of the term political opinion.
Political Discrimination - only Northern Ireland politics need apply!
In Northern Ireland the Fair Employment legislation was introduced in 1976 outlawing discrimination on the grounds of "religious belief or political opinion". The background was the existence of long-term and pervasive discrimination on religious grounds. This context, and the related government report and parliamentary proceedings, indicated that the inclusion of political opinion was because of the close correlation in NI between religion and politics most catholics being nationalists and most protestants being unionists.
Thus, it was initially considered that the type of political opinion which was protected was that which related to the constitutional status of Northern Ireland.
A broad definition
A 1993 tribunal decision in an application against the union NIPSA by a member who had unsuccessfully applied for a post led to a broader interpretation of the term political opinion. The member alleged discrimination based on his membership of the 'Broad Left' which was opposed to "the right wing approach and tendencies of the union leadership".
The tribunal dismissed the application finding that the term political opinion related solely to the particular political affairs of Northern Ireland. In 1994 the Court of Appeal overruled the tribunal and found that the term should be broadly interpreted stating:
"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".
A very broad definition?
The extent to which this definition is capable of (or indeed requires) a very broad interpretation was highlighted by a 1999 tribunal decision. That case concerned an applicant for the top post with the Northern Ireland Council for Ethnic Minorities (NICEM) who claimed that he had been discriminated against because he advocated an anti-racist approach rather than the culturally sensitive approach favoured by NICEM. The tribunal found that he had a view which sees anti-racism as involving obtaining power, and applying the definition above found that ".. it is impossible to say that an attitude to racism which involves obtaining of power for effectiveness is not a political opinion".
The tribunal made it clear that on the legal authorities and facts they were reluctantly compelled to find that there had been political discrimination. This is being appealed to the Court of Appeal on grounds including the issue of whether anti-racist and culturally sensitive approaches are political opinions.
This case law supports the view that political discrimination cases can be brought in a wide variety of situations. For example, Thompsons McClure (Belfast) has commenced a case on behalf of a union activist who claims that he was discriminated against because of union activities and that this is political discrimination. His argument is that union activities amount to a political opinion as they relate to government policy in regulating industrial relations and the rights of workers. It is likely that the employer (while pointing to the existence of a separate statutory remedy) will argue that any relevant union activities were concerned with workplace matters and did not relate to wider government policy and thus were not a political opinion.
Justification
In a different context, the issue of union activities provides an example of the use of justification as a counterbalance to a wide definition of political opinion. Thus, if unions or those working with unions make it a requirement that employees have a commitment to the union movement, could this be the basis of a claim of political discrimination?
Hopefully not. Insofar as this could be seen as political discrimination, the employer could rely on an exception which allows such discrimination "..where the essential nature of the job requires it to be done by a person holding, or not holding a particular political opinion".
A 1998 tribunal decision in an application brought by Rhonda Paisley, who had been a councillor for the Democratic Unionist Party (led by her father Reverend Ian Paisley) considered the issue of justification. The case concerned her application for the post which involved co-operation between Northern Ireland and the Republic of Ireland in arts activities. While the tribunal found that she had been discriminated against during her job interview on the basis of her political opinion, it also stated that the matter of her political opinion and its relevance to her suitability for the post was a matter which could have been lawfully pursued.
Thus, in relation to her association with the DUP, and the fact of "Éa perception that the Democratic Unionist Party would not be in the business of fostering closer contacts between Northern Ireland and the Republic of IrelandÉ", the tribunal stated that this could have been directly addressed "Éinsofar as the essential nature of the post required it to be done by a person holding or not holding such beliefs or opinions".
A different type of discrimination?
Comments by a leading judge in recent judicial review proceedings differentiating political discrimination from other discrimination suggest that the courts will seek to limit the scope of the former.
The case involved two junior barristers who had successfully applied to become senior barristers, Queen's Counsels (QCs). Before they could become QCs they were required to make this declaration:
"I do sincerely promise and declare that I will well and truly serve Her Majesty Queen Elizabeth II and all whom I may be lawfully called upon to serve in the office of one of Her Majesty's Counsel learned in the law according to the best of my skill and understanding".
The central issue was whether the requirement to make the declaration discriminated against the applicants as nationalists. While the case was ultimately successful on other grounds, the court found that there was no political discrimination. It found that the Applicants were not required to declare allegiance to the Queen and were merely required to undertake to render the same service to the Queen as they would to any other client.
On the issue of political opinion the judge stated:
"In the field of discrimination, a different approach must be taken to the question of political opinion from that which is appropriate to deal with the immutable conditions of life such as race or gender. If it were otherwise, 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".
In considering established case law in the field of sex discrimination he drew a distinction in relation to political belief stating:
"Any decision with political implications is virtually certain to be opposed by some members of the community and welcomed by others. Simply because such a decision is opposed does not mean that it discriminates against those individuals who are against it. It is impossible to cater for every brand of political opinion by anything other than the most bland political decisions".
The forthcoming appeal in the NICEM case will lead to further consideration of this developing area.