Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2004] NIFET 411_02, [2004] NIFET 411_2

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 411/02FET

APPLICANT: Grant Morrow

RESPONDENT: Sperrin Lakeland Health & Social Care Trust

DECISION

The unanimous decision of the Tribunal is that this application is dismissed for the reasons set out below.

This decision is given in extended form because the Tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision.

Appearances:

The applicant was represented by Mr P Brennan, Barrister-at-Law, instructed by Richard Monteith Solicitors.

The respondent was represented by Mr A Devlin, Barrister-at-Law, instructed by the Directorate of Legal Services.

The applicant, a Protestant and unionist complained that he had been unlawfully discriminated against on the grounds of his religious belief and/or political opinion when he was dismissed from employment as a home-help with the respondent after a very short period of time with the respondent.

With regard to the religious belief aspect of his complaint he maintained that if he had been a Roman Catholic he would have had more support from the respondent. He relied on the fact that the respondent employed many more Roman Catholics than Protestants (effectively two Roman Catholics for every one Protestant) as raising a prima facie case of unlawful discrimination.

With regard to the political opinion aspect of his case he pointed out that he had indicated on his application form that he had criminal convictions and he maintained that at his interview he had given full disclosure of these criminal convictions and that they were terrorist related and that the panel had not explored this matter further with him. He maintained that if he had been a republican with such criminal convictions he would have been treated differently.

After the interview the applicant was put on a waiting list for temporary appointment as a home-help and he was subsequently appointed to the post of temporary home-help by the respondent and commenced employment with it on 13 June 2002. Information was made available to the respondent about the type of the applicant's criminal convictions around 4 July 2002. However, no steps were taken by the respondent to deal with this matter until after the 12^th holiday.

On either 14 or 15 July 2002 the applicant was suspended and subsequently interviewed several times in relation to the respondent's belief that he had not made full disclosure at the time of his interview about the type of activities for which he had been convicted. A decision was then taken to dismiss him with notice from 28 July 2002.

The applicant was convicted in 1987 of armed robbery carried out under the aegis of a proscribed loyalist organisation and was given a five year prison sentence at that time. In 1997 he was further convicted of arson which was connected with a proscribed organisation and he was sentenced two to three years imprisonment for that. He accepted that at the time of his convictions his political opinion was one that believed that violence was justified. His evidence was that since the Good Friday Agreement he accepts that the use of violence for political ends is not acceptable.

At the end of the applicant's cross-examination Mr Devlin requested that a direction be made that there was no case for the respondent to answer.

With regard to the alleged discrimination on grounds of political opinion Mr Devlin pointed out that the applicant's case was that he was unlawfully discriminated against on this ground because he had been dismissed in relation to his convictions for terrorist offences. He maintained that the applicant was precluded from bringing such a complaint to the Tribunal in view of the definition of political opinion contained in Article 2(4) of the Fair Employment & Treatment (Northern Ireland) Order 1998.

With regard to the alleged unlawful discrimination on grounds of religious belief Mr Devlin maintained that the applicant had not provided sufficient evidence to discharge the obligation on him to establish a prima facie case. He pointed out that the applicant was relying solely on the fact that he was a Protestant and that there was an imbalance in the respondent's workforce in favour of Roman Catholics. He maintained that this was not sufficient to shift the burden of proof to the respondent.

Mr Brennan maintained that the applicant's political opinion extended to more that his belief in the use of violence and pointed out that he had made reference in his evidence to being a Unionist. He also pointed out that while the applicant had previously espoused the use of violence, his clear evidence was that this was no longer the case. He pointed out that it was the applicant's case that he had provided information with regard to his convictions at the interview for the job and that nothing had changed between then and the investigatory interviews which lead up to his dismissal. He also suggested that asking questions of the applicant at the investigation stage about his ability to work in certain areas or to look after clients of all religious persuasions was tantamount to discriminating against him on the grounds of religious belief.

The Tribunal is well aware that it is only in exceptional cases that a Tribunal hearing a discrimination case will not go on to hear the respondent's explanations for the treatment alleged. We are however satisfied that this case is one of those exceptional cases.

With regard to the allegation of unlawful discrimination on the grounds of religious belief we do not accept that the applicant has established a prima facie case. His evidence was that he is a Protestant and that there are a considerably greater number of Roman Catholics than Protestants employed by the respondent and that he was asked questions about areas where he could not work and his ability to look after various types of clients of different religious beliefs. The suggestion was that the Tribunal could infer from these facts that he was treated less favourably than a Roman Catholic would have been and that such treatment was on the grounds of his religious belief. The Tribunal is not satisfied that these bare facts are sufficient to create an inference that the act in question was on the grounds of religious belief and so the Tribunal does not accept that the applicant has established a prima facie case sufficient to shift the burden of proof to the respondent.

With regard to the applicant's allegation of unlawful discrimination on grounds of political opinion the applicant accepted 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. His case was that it was because of his involvement in these matters that he had been dismissed on the grounds of political opinion.

Article 2(4) of the Fair Employment & Treatment (Northern Ireland) Order 1998 provides:-

"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."

As the applicant maintains that the less favourable treatment he was afforded was on the grounds of his political opinion at the time of his terrorist related convictions which encompassed the use of violence the Tribunal is satisfied that Article 2(4) of the Fair Employment & Treatment Order precludes him from bringing a claim under the Fair Employment & Treatment (Northern Ireland) Order 1998. In the circumstances both limbs of the applicant's complaint of unlawful discrimination on the grounds of his religious belief and/or political opinion are dismissed.

Chairman:

Date and place of hearing: 1 and 2 September 2004, Belfast.

Date decision recorded in register and issued to parties: