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Gill v. Northern Ireland Council for Ethnic Minorities [2001] NICA 30 (27 June 2001)
Judgment:
approved by the Court for handing down
(subject
to editorial corrections)
IN
HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_____
BETWEEN
WHYED
GILL
(Applicant)
Respondent
and
NORTHERN
IRELAND COUNCIL FOR ETHNIC MINORITIES
(Respondent)
Appellant
_____
CARSWELL
LCJ
Introduction
1. This
is an appeal by way of case stated against a decision of the
Fair Employment Tribunal given on 2 December 1999, whereby it found that
the appellant Northern Ireland Council for Ethnic Minorities (NICEM)
discriminated against the respondent on the grounds of his political opinion in
failing to appoint him to the post of co-ordinator in February 1996.
Discrimination
2. Discrimination
in the employment field is now governed by the provisions of the Fair
Employment and Equal Treatment (Northern Ireland) Order 1998, but in 1996 the
applicable legislation was the Fair Employment (Northern Ireland) Act 1976, as
amended by the Act of 1989. The basic provision on which the respondent relied
was section 17, which read:
“17.
It shall be unlawful for an employer to discriminate against a person, in
relation to employment in Northern Ireland –
(a)
where
that person is seeking employment –
*****
(ii)
by
refusing or deliberately omitting to offer that person employment for which he
applies ...”
3. Discrimination
was defined by section 16(2) of the 1976 Act, as amended, the material part of
which read:
“(2)
A person discriminates against another person on the grounds of religious
belief or political opinion in any circumstances relevant for the purposes of
this Act if --
(a)
on
either of those grounds he treats that other less favourably than he treats or
would treat other persons ...”
The
Factual Background
4. The
case stated, as so often, does not contain a systematic and comprehensive
statement of the facts found by the tribunal to have been proved or admitted
before it and it has been necessary for us to draw extensively on the written
decision of the tribunal and the supporting documents in order to ascertain the
facts.
5. NICEM
advertised on 12 January 1996 for applications for the post of co-ordinator.
The job description set out the main duties of the post as follows:
“MAIN
DUTIES
6. The
post of the Co-Ordinator will involve responding to the assessed needs of the
constituent members of N.I.C.E.M. through effective management of the following
tasks:
1) The
carrying out of a detailed appraisal of the needs of N.I.C.E.M. members and the
preparation and implementation of a three year development plan for the
organisation.
2) Assisting
the Executive Committee of N.I.C.E.M. to develop policy and guidelines on a
range of relevant issues.
3) Developing
a monitoring and advocacy system to address instances of discrimination, racial
abuse and effective use of these.
4) The
provision of community development training for N.I.C.E.M. members in
Leadership Skills, Management and Organisation Publicity and Media Community
Action Fund-raising and other such relevant skills are required.
5) Responding
to social policy documents, legislative proposals etc in order to ensure that
the interests of N.I.C.E.M. members are effectively represented.
6) The
promotion of culturally specific access for N.I.C.E.M. members through the
appropriate statutory and voluntary agencies to the full range of services
available ie health and social services, education and training, youth work
provision etc.
7) The
development of alliances and active partnerships with a range of sectors
including statutory and voluntary sectors, trade unions and media.
8) Providing
relevant advice and assistance to the range of relevant statutory and voluntary
agencies as required.
9) The
promotion of anti-racist practice in relation to work with minority ethnic
groups.
10) The
promotion of a greater understanding of the needs, circumstances, culture and
aspirations of minority ethnic groups amongst the wider community through the
organisation of seminars, training, the commissioning of research and the
publication of reports, leaflets, posters etc.
11) To
establish and maintain an up-to-date collection of printed and audio-visual
material concerning minority ethnic groups and race relations issues and to
respond to requests for relevant information from agencies, researchers,
students etc.
12) To
represent and publicise the work of N.I.C.E.M. at appropriate conferences and
seminars.
13) To
establish and effectively utilise contacts with the media on behalf of N.I.C.E.M.
14) To
develop and implement a fund-raising strategy.
15) To
supervise the Project Administrator.
16) To
respond to all general correspondence received by N.I.C.E.M.
17) To
present a monthly report to the Executive Committee.
18) To
organise the Annual General Meeting of N.I.C.E.M. and to write; arrange the
publication of and circulate the Annual Report.
19) Attendance
at monthly supervision sessions with a nominated member of the Executive
Committee.
20) General
advocacy of the interests of N.I.C.E.M.
21) Any
other tasks deemed appropriate by the Executive Committee.”
7. The
personal specification set out a substantial list of requirements for the post,
in the following terms:
“Requirement Essential/Desirable
1. Qualification/Education/Knowledge
8. • Diploma
in Social work or Youth & Community
work
or relevant discipline.
Essential
2. Experience
9. • Three
years relevant experience in working with
minority
ethnic groups.
Essential
10. • Previous
experience in conducting anti-racism
training
and leadership training.
Essential
11. • Knowledge
of minority ethnic issues in N.I.
Essential
12. • Knowledge
of relevant minority language.
Desirable
3. Abilities
– both aptitudes and skills
13. • Ability
to organise people at grass roots level.
Essential
14. • Ability
to advocate ethnic minorities issues at
policy
level.
Essential
15. • Ability
to conduct anti-racism and leadership
training. Essential
16. • Ability
to work, communicate and liaise with a
range
of individuals, voluntary and statutory
agencies. Essential
17. • Ability
to communicate clearly both verbally and
in
writing, in English.
Essential
18. • Ability
to work to deadlines.
Essential
19. • Ability
to work with groups.
Essential
20. • Ability
to supervise and support seasonal
workers. Essential
21. • Ability
to plan, co-ordinate and prioritise work.
Essential
22. • Ability
to use computer.
Essential
4. Personal
qualities – characteristics, style, interests,
attitudes
23. • Resourcefulness. Essential
24. • Flexibility. Essential
25. • Enthusiasm. Essential
26. • Commitment
to anti-racist policy and
practice. Essential
27. • Cultural
sensitivity.
Essential
5. Circumstances/health
28. • No
health problems which would affect the
ability
to undertake the duties of the post.
Essential
29. • Available
to work flexibly when required to
do
so e.g. weekends and evenings.
Essential
30. • Access
to personal transport.
Essential”
31. The
respondent and Mr Patrick Yu were two of the four persons shortlisted for the
post and interviewed by a selection panel on 22 February 1996. Mr Yu was
selected for the post and the respondent was placed as reserve. The interview
panel consisted of four persons, all members of NICEM, three of whom were
executive members. The chairman was from the Chinese community, one was
Secretary of the NI African Cultural Centre and another was Secretary of the
Islamic Centre. The fourth member was white; she was originally to act as
independent observer, but sat instead as a member when the Chairman of NICEM
was unable to attend.
32. The
candidates were assessed by reference to twenty criteria, each of which was
weighted as being of the same importance as the others. These criteria were:
“(1) Presentation.
(2) Ability
to plan, co-ordinate and prioritise work.
(3) Ability
to communicate clearly both verbally and in writing in English.
(4) Knowledge
of minority ethnic issues.
(5) Ability
to organise people at grass roots levels.
(6) Ability
to advocate ethnic minorities issues at policy level.
(7) Ability
to conduct anti-racism and leadership training.
(8) Ability
to work, communicate and liaise with a range of individuals, voluntary and
statutory agencies.
(9) Ability
to work with groups.
(10) Ability
to supervise and support seasonal workers.
(11) Resourcefulness.
(12) Flexibility.
(13) Commitment
to anti-racist policy and practice.
(14) Enthusiasm.
(15) Cultural
sensitivity.
(16) Available
to work flexible hours.
(17) Good
health.
(18) Access
to personal transport.
(19) Qualifications.
(20) Experience.”
33.
The candidates were marked by each member with a mark on each of the criteria,
classed as Very Good (5 marks), Good (4 marks), Average (3 marks), Satisfactory
(2 marks) or Unsatisfactory (1 mark). The tribunal annexed to its decision a
sheet summarising the markings (Appendix H) and another sheet (Appendix I)
which purported to show the total score of the respondent and Mr Yu on each of
the criteria. The arithmetic of Appendix I was, however, incorrect on several
of the scores. The appellant’s advisers produced a corrected version of
Appendix I, which we have checked and accept to be correct. A copy of the
correct version is appended to this judgment. The differences are in criterion
5, where Mr Yu’s score on the tribunal’s appendix was 18,
whereas it should have been 19; in criterion 9, where the respondent’s
score on the tribunal’s appendix was 19, whereas it should properly have
been 16; and in criteria 16, 17 and 18, where the appellant and Mr Yu should
have been given 18 marks on each and not 19. The tribunal had given the
respondent a total of 359 marks and Mr Yu a total of 374 marks, whereas the
correct figures should be 353 for the respondent and 372 for Mr Yu. On both
the tribunal’s version and the correct version of Appendix I the
respondent scored ahead of Mr Yu on five criteria and they were equal on five,
while Mr Yu was ahead of the respondent on ten criteria.
34. The
total marks for each candidate given by the individual members of the panel
were as follows:
Gill
Yu
Mrs
W, chairman 95 94
M
87 90
I
92 97
Ms
L 79 91
35. It
may be seen accordingly that Mrs W favoured the respondent by a single mark,
while the other three put Mr Yu ahead by varying margins.
The
Proceedings before the Tribunal
36. The
respondent lodged a complaint with the tribunal on 21 May 1996, alleging that
he had been discriminated against on the grounds of religious belief and
political opinion and victimised in not being appointed to the post. He did
not at the hearing pursue the issue of religious belief. In its appearance
NICEM denied that it had discriminated against the respondent and stated:
“The
respondent is unaware of the religious belief or political opinion of the
Applicant and does not believe these beliefs could be perceived.”
37. In
paragraph 7(i) of the case stated the tribunal states:
“(i) The
claim that the successful candidate was assessed to have secured higher marks
than the respondent across the entire range of the criteria was ambiguous. The
respondent was assessed higher on five criteria and equal on five
criteria.”
38. The
“claim” referred to was the statement in paragraph 2(g) of
NICEM’s response to the complainant’s questionnaire:
“The
successful candidate, Mr Yu, was assessed to have secured higher marks across
the entire range of criteria. In particular, Mr Yu was judged to have better
abilities to plan, co-ordinate and prioritise work, a better knowledge of
minority ethnic issues, a better ability to organise people at grassroots
level, a better ability to work with groups and to be more in touch with
cultural sensitivity. In addition some of the Panel members had the general
impression that the Complainant was somewhat patronising during the interview.
”
39. In
our view it appears quite clear that NICEM was saying in the impugned sentence
in this paragraph that Mr Yu’s overall score was higher than the
respondent’s, a fact which is indisputable on either the tribunal’s
Appendix I or the correct version, but which is nowhere mentioned in either the
decision of the tribunal or the case stated. We consider that the criticism in
the case stated is unfounded.
40. In
paragraph 7(j) of the case stated the tribunal went on to say:
“(j) The
appellant was seriously misleading in his written replies in saying that the
respondent performed less well on his interview on his presentation. He scored
higher than the successful candidate – 16 to 15.”
41. The
statement described as “seriously misleading” does not, however,
appear in NICEM’s written response to the questionnaire, but in an
earlier letter to the Fair Employment Commission. In the written response
NICEM stated simply that –
“The
Panel felt that the successful candidate’s interview performance was
superior to that of the Complainant.”
42. We
could not regard that statement as being in any way misleading.
43. The
respondent failed to comply with an order of the tribunal requiring him to
furnish particulars. At the hearing NICEM’s representatives were
prepared to meet the case of discrimination once the claims were identified,
but not that of victimisation. The respondent withdrew the claim of
victimisation rather than have the matter adjourned for the furnishing of
particulars.
44. The
respondent made the case before the tribunal that he had not been given the
appointment because of his views, although NICEM denied that they had been
discussed or taken into account at the interview. The tribunal accepted in
paragraph 12(j) of the case stated that “the anti-racist issue was
not the subject of significant discussion at interview”, but went on to
say that the respondent “did raise an anti-racist profile” in his
application form, in which he referred in several places to anti-racist
matters. In paragraph 7 of its decision the tribunal stated:
“In
factual terms the applicant alleged that the reason he was unsuccessful in
securing the post of co-ordinator with the respondent was his association with,
and advancement of, an ‘anti-racist approach’ to the solution of
the racial problems of ethnic minorities in Northern Ireland when the
approach favoured by the respondent, and by the successful candidate, was the
culturally sensitive one. Whatever the other merits of the allegations and
counter-allegations, we unanimously are satisfied that in racial awareness
terms, these are fundamentally disparate concepts with a definite significance
for an organisation such as the respondent organisation. On the evidence which
we heard, we believe, on balance of probabilities, that even amongst those
alert to the concept, not everyone would agree upon a common definition of the
anti-racist approach. Clearly the applicant is a follower of a school of
thought which sees anti-racism as involving the obtaining of power.”
45.
It concluded that this attitude constituted a political opinion.
46. Counsel
for NICEM called only the chairman of the panel to give evidence, whereas it is
more usual in such cases also to call other members to rebut the suggestion of
discrimination. When given an opportunity by the tribunal to reconsider this
decision he adhered to it and the sitting was adjourned to the next day for
final submissions to be presented. The next morning counsel applied to the
tribunal to be permitted to call further witnesses, informing the tribunal that
he acted outside his instructions in failing to do so the previous day. The
respondent opposed this, on the ground that he was not “mentally
prepared” for further evidence. The tribunal refused to allow counsel to
call further witnesses, on the ground that he had authority as counsel to
decide which witnesses to call and the tribunal “was not satisfied that
the interests of justice would be served” by allowing him to take that
course. It stated its reasons in paragraph 14 of the case stated:
“The
Tribunal did so because –
(a) no
grounds for the application had been shown.
(b) the
appellant was legally represented and the respondent was not represented.
(c) the
preparation for a discrimination case by a lay person is a difficult exercise.
(d) the
appellant had sought to have the respondent’s application dismissed for
failing to comply with a Tribunal order. As a consequence a victimisation
claim was withdrawn by the respondent and dismissed by the Tribunal. The
Tribunal had warned the respondent repeatedly about his manner of presentation
throughout the hearing. He had been threatened with costs for this conduct.
There was therefore a considered emphasis put on the formal requirements by
both the appellant’s counsel and the Tribunal in the face of a lay
person’s presentation of a discrimination complaint against a legal
representative. The appellant, having clearly indicated and confirmed that no
further evidence would be called, despite opportunity having been given for
further consideration, wished to reopen the evidence at large.
Taking
all of these matters into account, including the attitude of the respondent,
the Tribunal refused the application from the appellant to call further
evidence.”
The
Tribunal’s Decision
47. The
tribunal gave a written decision on 2 December 1999, finding that NICEM had
unlawfully discriminated against the respondent on the ground of his political
opinion in not appointing him to the post of co-ordinator. It stated in
paragraphs 9 to 13 of the case stated its reasons for concluding that NICEM had
treated the respondent less favourably than Mr Yu and that such treatment was
unlawful discrimination on the ground of the respondent’s political
opinion:
“9. By
inference the appellant preferred the successful candidate for the post –
(a) because
of his performance at interview and perhaps the contents of his presentation;
(b) because
of their knowledge of him as a member of NICEM as suggested by the respondent
and denied by the appellant; or
(c) because
of his ‘culturally sensitive’ approach as distinct from the
respondent’s ‘anti-racist’ approach, as suggested by the
respondent and denied by the appellant.
10. In
the absence of evidence from the appellant other than the chairman of the
interview panel, who, on her assessments at interview, would have awarded the
post to the respondent, there is no evidence to be considered as to the
reason(s) for the appellant’s preference for the successful candidate.
11. In
circumstances where the interviewers themselves concluded that the respondent
was better qualified and more experienced than the successful candidate for the
post, the Tribunal concluded that the respondent was less favourably treated
than the successful candidate.
12. On
the evidence, the Tribunal concluded that –
(a) There
was a distinction in racial awareness terms between what was described as an
‘anti-racist’ approach and a ‘culturally sensitive’
approach.
(b) This
difference had a definite significance for the appellant.
(c) Whilst
there is not a common definition of what is meant by an anti-racist approach,
the respondent was a follower of a school of thought which understood the
anti-racist approach as involving the obtaining of power.
(d) The
respondent was unsuccessful partly because he performed less well in relation
to the culturally sensitive approach.
(e) The
respondent was given a higher mark for his ability to conduct anti-racism and
leadership training compared to the successful candidate but equal marks with
the successful candidate in relation to commitment to anti-racist policy.
(f) The
interviewer L, a white member of the panel, afforded the respondent a
considerably lower score than the successful candidate in a context where her
marks for the successful candidate were within the range of markings of the
other interviewers, but her markings for the respondent were considerably
outside that range.
(g) The
composition or selection of members of the interview panel did not assist the
Tribunal in deciding whether to draw an inference of unlawful discrimination.
(h) The
criteria used for selection demonstrated the importance of the anti-racist
concept for the interview panel as alone amongst the criteria it was afforded a
double significance.
(i) The
words ‘anti-racist policy’ are not adequately translated as
‘against racism’ but hold a major esoteric significance within a
definite philosophy.
(j) The
anti-racist issue was not the subject of significant discussion at interview
but the respondent, unlike the successful candidate, did raise an anti-racist
profile in his application form in that he wrote about –
(i) developing
links with the two main anti-racist organisations in France whilst he was
chairman of Birmingham University Anti-Racist Group.
(ii) playing
a lead role in radically raising the whole profile of anti-racism.
(iii) his
success in developing a unified, coherent and powerful black lobby.
(iv) his
fully updated stock of anti-racist literature, and
(v) his
development of constituency and training services for anti-discriminatory
practice and legislation.
(k) The
successful candidate in contrast referred to the fact that he had been
conducting anti-racism training.
(l) They
were not convinced by the evidence of the only witness for the appellant that
she did not prefer a ‘culturally sensitive’ approach to an
‘anti-racist’ approach.
(m) The
interview panel preferred the approach of the successful candidate to that of
the respondent and that such preference involved the preferential evaluation of
‘cultural sensitivity’ over ‘anti-racism’.
13. The
Tribunal, having concluded that –
(a) the
interview panel treated the respondent less favourably than the successful
candidate.
(b) the
respondent had a different political opinion from the successful candidate.
(c) that
the appellant afforded no explanation for this less favourable treatment,
inferred
that the reason for this less favourable treatment was related to the
respondent’s political opinion and concluded that the appellant
unlawfully discriminated against the respondent on the grounds of his political
opinion.”
48. In
its decision the tribunal referred more than once in support of its conclusions
to the fact that the only witness who had given evidence for NICEM was the
chairman, who had placed the respondent one mark ahead of the successful
candidate. It did, however, have the marking sheets and set out an analysis of
the scores in its own appendices, so it had ample means of knowledge of the
rankings made of the candidates by all the members of the panel in respect of
each criterion. Moreover, in paragraph 18 it referred in adverse terms to Ms
L’s gradings of the candidates – a matter to which we shall return
later – and was well able to see what marks each had given.
The
Case Stated
49. By
letter dated 16 December 1999 NICEM’s solicitors asked the tribunal to
review its decision, but the President refused to do so, by written decision
given on 24 March 2000, on the ground that in his opinion “it had no
reasonable chance of success”. NICEM’s solicitors had on 10
January 2000 asked the tribunal to state a case for the opinion of this court,
since it had not made any response to their application for a review. The
tribunal stated and signed a case on 21 April 2000, the questions of law posed
being:
“1. Was
the Tribunal correct in law in deciding that the respondent’s advancement
of an ‘anti-racist approach’ was a political opinion for the
purposes of the Fair Employment and Treatment (Northern Ireland) Order 1998?
2. Was
the Tribunal correct in law in determining that an anti-racist approach
differed from a ‘culturally sensitive’ approach and amounted to a
difference of political opinion for the purposes of the Fair Employment and
Treatment (Northern Ireland) Order 1998?
3. Was
the Tribunal correct in law in determining that if the appellant had preferred
the culturally sensitive approach of a candidate over the anti-racist approach
of the respondent (which is not accepted by the appellant) had this amounted to
an opinion ‘relating to the policy of Government and matters touching the
Government of the State’ as determined by the Court of Appeal in
McKay
v Northern Ireland Public Service Alliance
[1995] IRLR 146 and amounted to unlawful discrimination on the grounds of
political opinion?
4. Was
the Tribunal correct in law to decide that the respondent had raised a prima
facie case of unlawful direct discrimination on the grounds of political
opinion in circumstances where the successful candidate was marked higher by
the panel but in circumstances where the respondent scored lower on the
criterion of cultural sensitivity?
5. Was
the Tribunal correct in law to refuse to allow the appellant to call further
evidence to rebut a purported prima facie case of unlawful discrimination of
the grounds of political opinion in circumstances where counsel indicated to
the Tribunal that he had acted outside the ambit of his instructions and wished
to call further evidence in the interests of justice and fairness.
6. Was
the Tribunal correct in law to determine in the circumstances of 1-5 above that
the appellant had discriminated unlawfully against the respondent on grounds of
political opinion and in circumstances where the inference of discrimination
was drawn by the Tribunal having refused the appellant an opportunity to rebut
the alleged prima facie case of unlawful discrimination.”
The
Grounds of Challenge
50.
The grounds on which NICEM challenged the tribunal’s decision
were the following:
1.
NICEM had not treated the respondent less favourably than other persons in
refusing him employment.
- The
views held by the respondent on “anti-racism” were not a political
opinion.
- NICEM
had not discriminated against the respondent because of his views.
Less
Favourable Treatment
51.
In concluding that the respondent was less favourably treated than Mr
Yu, the tribunal necessarily must have taken the view that he was the better
candidate but was passed over on the ground of his political opinion. In our
opinion this conclusion was unsustainable. The primary facts in our judgment
lead irresistibly to the opposite conclusion, in the familiar phrase used by
Viscount Simonds in
Edwards (Inspector
of Taxes) v Bairstow
[1956] AC 14 at 29. The marks of the several members of the panel, which the tribunal
had before it, demonstrate indisputably that three of the four members gave Mr
Yu a higher score, by varying but clear margins, and only the chairman placed
the respondent ahead, by one mark. The criteria were all equally weighted and
Mr Yu scored more highly in ten of these, in some markings by a considerable
margin. The respondent was ahead of him in only five criteria, and in four of
these by only a single mark. Mr Yu’s total score gave him a clear lead
by 372 marks against 353. In these circumstances it appears to us beyond
dispute that the respondent was the better candidate.
52. The
tribunal in paragraph 11 of the case stated and paragraph 18 of the decision
picked out two criteria, qualifications and experience, on each of which the
respondent was one mark ahead of Mr Yu and concluded from this that he had been
less favourably treated. We do not see any justification for this conclusion.
All criteria were to carry equal weight and to be marked equally, and in our
view the panel would have been quite wrong to appoint one candidate on the
basis of these criteria when another had scored significantly more highly on
the sum of the criteria. We do not see any defensible basis for the inference
drawn by the tribunal in paragraph 9 of the case stated and paragraph 13 of the
decision.
53. Nor
can we accept the tribunal’s averment in paragraph 10, that since the
only member of the panel to give evidence was the chairman (who was narrowly in
favour of the respondent) there was “no evidence to be considered as to
the reason(s) for the appellant’s preference for the successful
candidate”. The evidence was plainly there for the tribunal to see, in
the shape of the members’ mark sheets, and the tribunal itself summarised
the results in paragraph 7(l) of the case stated and paragraph 12 of the
decision, as well as annexing the summaries to the decision. The fact that the
individual members were not called in evidence did not affect the admissibility
of the evidence and the conclusion to be drawn from it.
54. Both
in paragraph 12(f) of the case stated and, more explicitly, in
paragraph 18 of the decision, the tribunal implied that Ms L, the sole
white member of the panel, marked the respondent down because of racist views.
It appears to have accepted the validity of the respondent’s objection to
her serving on the panel because she was white. We find this objection
misplaced. We find it remarkable that the respondent, who professes
anti-racist views, should object to a panel member on what can only be
described as racist grounds. Moreover, the final contest was between non-white
candidates, not between white and non-white, and we see no ground for supposing
that a white person would have a bias for or against either. We consider that
the tribunal’s implication against Ms L was unwarranted.
55. We
consider therefore that NICEM did not treat the respondent less favourably than
it treated other persons. We consider that no tribunal properly directed could
reasonably reach that conclusion on the evidence and we therefore do not
propose to remit the matter for a further hearing and decision. That is
sufficient to dispose of the appeal in the appellant’s favour, but since
the other issues were fully argued and are of some importance to the work of
the tribunal we shall express our view on them.
Political
Opinion
56. The
tribunal was of the opinion that the respondent’s views on anti-racism
constituted a political opinion, for the reasons set out in paragraph 7 of its
decision, which we quoted earlier. In support it cited a passage from Kelly
LJ’s judgment in
McKay
v Northern Ireland Public Service Alliance
[1994]
NI 103 at 117. This passage, together with the following two sentences, reads:
“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.’
57. 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.”
58. The
context of those remarks was an issue whether the “Broad Left”
opinions held by the appellant constituted political opinions for the purposes
of the fair employment legislation, or whether, as the tribunal had held, such
political opinions must display some connection or correlation between religion
and politics in Northern Ireland. This court held that the meaning of the term
was not restricted in the manner accepted by the tribunal and that it was not
confined to Unionist-Nationalist politics.
In
Re
Treacy’s Application
[2000]
NI 330 Kerr J had occasion to consider the meaning of the phrase
“political opinion” in a different context, and although he
expressed the need for caution in dealing with the concept in a discrimination
case he did not essay a comprehensive definition of the words. The extradition
cases based on the interpretation of the phrase “offence of a political
character”, such as
Shtraks
v Government of Israel
[1964] AC 556 and
R
v Governor of Pentonville Prison, ex parte Cheng
[1973] AC 931, are also of limited assistance, since they concern somewhat different
issues. We are of the view that the remarks of Kelly LJ in
McKay v
NIPSA
and
the dictionary definition quoted by him give us the most useful guidance for
present purposes. 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 predispose 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. The
opinion or opinions held by the respondent which he claimed brought about
discrimination against him appear, if we understand the description given by
the tribunal, to be concerned with advocating more aggressive means of
achieving the objects of NICEM than the “culturally sensitive”
methods espoused by Mr Yu and apparently favoured by the panel. We can only go
on that description, but from it we conclude that the difference between the
“anti-racist” and “culturally sensitive” approaches is
one of methods, the one being more aggressive and confrontational than the
other, but both being means of advancing the interests of people from ethnic
minorities. It might be possible to describe such a difference as constituting
a divergence of political opinion, but we do not think that it is the type of
political opinion intended by Parliament in enacting the fair employment
legislation.
Calling
Further Witnesses
59. We
turn finally to question 5, which is concerned with the refusal by the tribunal
to allow counsel for NICEM to call further witnesses. Counsel had, no doubt
ill-advisedly, elected to close his case at the end of the previous day’s
sitting after calling only one witness, the chairman of the panel. When it
came to the commencement of the next day’s sitting, he had been advised
or instructed to seek to call further witnesses to support his client’s
case. Nothing had happened in the case since the previous afternoon’s
adjournment, and we can see no ground for supposing that the respondent had put
himself in any worse position as a result of counsel’s electing to close
the case. The tribunal nevertheless, on what we regard as excessively
formalist or technical grounds, refused to allow counsel to call witnesses to
complete what he now appreciated to be the proper presentation of his case. It
then proceeded to take into account against NICEM in reaching its decision that
no witnesses other than the chairman had been called to give evidence. In our
considered opinion this was unfair in the extreme and perpetrated a serious
injustice, which we can only deplore. Nevertheless, this is an appeal on
points of law and we are unable to say that the tribunal was acting outside its
jurisdiction or that it committed an error of law in so ruling. We must
qualify this, however, by pointing out that the hearing took place before the
Human Rights Act 1998 came into operation. If a tribunal were to act in such a
way today, we have little doubt that its decision would be held to be unfair
and vulnerable to being set aside as being in breach of Article 6(1) of the
European Convention on Human Rights.
Conclusions
60. We
have redrafted the questions to reflect the issues which we have discussed in
this judgment, as follows:
- On
the facts proved or admitted could the tribunal properly hold that the
appellant treated the respondent less favourably than other persons in refusing
to offer him the employment for which he had applied?
- Was
the tribunal correct in law in deciding that the respondent’s
“anti-racist” approach was a political opinion within the meaning
of the Fair Employment (Northern Ireland) Act 1976, as amended?
- Was
the tribunal entitled to refuse to allow the appellant to call further evidence?
61.
We answer questions 1 and 2 in the negative and answer question 3 “The
tribunal was not acting unlawfully in its refusal.” We allow the appeal
and dismiss the respondent’s complaint.
IN
HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_____
BETWEEN
WHYED
GILL
(Applicant)
Respondent
and
NORTHERN
IRELAND COUNCIL FOR ETHNIC MINORITIES
(Respondent)
Appellant
_____
JUDGMENT
OF
CARSWELL
LCJ
_____
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