Public appointments in Northern Ireland: merit or religious bias?

Not surprisingly given its recent history, the issue of religious discrimination in employment was tackled rather earlier in Northern Ireland than in Great Britain; and the current applicable law – the Fair Employment and Treatment (Northern Ireland) Order 1998 repeals and re-enacts the Fair Employment (Northern Ireland) Act 1976 and the Fair Employment (Northern Ireland) Act 1989 with amendments.

The 1998 Order outlaws religious discrimination in employment. Article 3 contains provisions relating to discrimination and unlawful discrimination on the ground of religious belief or political opinion, while Article 23 provides that “In this Order references to a person’s religious belief or political opinion include references to – (a) his supposed religious belief or political opinion; and (b) the absence or supposed absence of any, or any particular, common religious belief or political opinion”. Finally, Regulation 24 of the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 inserts a new section 38A into the 1998 Order which places the burden of proof of non-discrimination on the respondent: “[T]he 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”.

Lennon v Department for Regional Development [2012] NIFET 00075 11FET (19 June 2012) was about an allegation of discrimination in the appointment of a new Chair of Northern Ireland Water.

The Department for Regional Development advertised for appointments to the Board of NIW.  At the material time, ministerial public appointments in Northern Ireland were governed by the Code of Practice for ministerial public appointments for Northern Ireland (1 February 2010) and by Procedures for Handling Public Appointments (September 2009). The Minister appointed Mr Sean Hogan as Chair; and the claimant, Dr Alan Lennon, contended before the Fair Employment Tribunal that he had been the better-qualified candidate and was not appointed because he was a Protestant.

The Tribunal upheld Dr Lennon’s allegation of unlawful discrimination on the ground of religious belief but dismissed his further complaint of unlawful discrimination on the ground of political opinion. The Tribunal found as a matter of fact that there had been a breach of the Code and the Procedures by the Minister in adding further essential criteria to the established criteria in order to secure the appointment of Mr Hogan (para 8(2)).The Tribunal was unconvinced by the Minister’s claim that he did not know the religious backgrounds of the candidate and rejected the contention “… that he appointed Sean Hogan on merit and that he did not know whether the five recommended candidates were Protestant or Catholic … In the reality of the political and religious environment in Northern Ireland, the Tribunal finds that the Minister’s evidence on this point is implausible and lacks credibility” (para xxvi).

Comment: Claims of religious discrimination in employment are still by no means rare in Northern Ireland – there were nineteen Tribunal cases in 2011 – but the decision has caused something of an uproar in political circles. Conor Murphy MLA, the Minister who made the appointment (and who is no longer a member of the Northern Ireland Executive), rejected the Tribunal’s findings, asserting that he appointed Mr Hogan solely on merit and pointing out that “This particular appointment was audited by the Appointments Commissioner who found that [the procedure] was properly adhered to,” At the time of writing, the Department for Regional Development was considering an appeal.

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