About those sweeteners..

On the BBC’s TalkBack show they’re currently discussing the announcement by the NIO that what they’ve described as the “conflict-related convictions” of job applicants will not able to be taken into account by potential employers, apart from in exceptional circumstances. NIO statement here. It was predicted by Alan Murray in the Sunday Life. Interestingly that prediction was that the announcement would be made on Wednesday.. but then we only saw the UVF statement yesterday.. Now, about those poisonous foundations.. Added According to the NIO statement, through the Office of the First and Deputy First Ministers, it’s “voluntary guidance” covering “all employers in the public, private and voluntary sectors” and it’s to be “reviewed after 18 months.” Details of that guidance here [pdf file] And in case anyone missed the reference in the earlier post, here’s another reminder of the Secretary of State for Wales etc’s previous comments on the past.From that voluntary guidance

5 Considering Conflict-Related Convictions

5.1 In this section convictions relate to conflict-related ones.

5.2 Only after interview when the successful candidate for employment has been chosen, should the issue of a conviction, be considered.

5.3 In the case of the Northern Ireland Civil Service a criminal record check is sought after an individual is recommended for appointment. If it transpires that the individual has a record, a statement of disclosure form is issued for completion by the applicant. This provides the opportunity to put the nature of the offence/conviction in context and provide any supporting material eg, testimonials, references etc.

5.4 There are three possible scenarios once a successful candidate has been selected and a record check occurs:

• if the candidate does not possess a conviction, the appointment is made;
• if the candidate has declared a conviction, but the employer considers that it is not materially relevant to the post, the appointment is made;
• if the candidate has declared a conviction and the employer considers that it is, or could be, materially relevant, and is manifestly incompatible with the post then the appointment is not immediately offered.

5.5 In the third scenario the employer should make contact with the candidate to explain his/her decision. If the candidate accepts the employer’s consideration, the employer may move on to the next highest placed candidate.

5.6 If after explanation the candidate does not accept the employer’s consideration, it is recommended that he/she meet with the employer to discuss the issue. The candidate may bring along a representative and may supply supporting evidence in regard his/her case that the conviction is not materially relevant. The applicant should be given the opportunity to make his/her views known regarding the conviction and its relevance, or otherwise, to the post.

5.7 If, after this discussion, the employer continues to consider that the conviction is materially relevant and manifestly incompatible with the post, the candidate may bring the matter to a review panel. The review panel (the modalities of which are set out in section 6) is non statutory. It will receive complaints and concerns raised by individuals. Such complaints and also evidence of good practice will form the basis of an annual report to the Secretary of State on the operation of this voluntary tripartite arrangement.

6 Tripartite Review Panel

6.1 Only if a satisfactory outcome cannot be arrived at through informal discussion between potential employer and candidate should the next step be to refer the matter to a review panel. The panel, which will be non statutory, will comprise representatives of the three parties to this guidance.

6.2 It will be serviced by a part-time secretariat and will be tasked with considering individual complaints and also cataloguing evidence of good practice. It will be asked to provide the Secretary of State with a detailed annual report on the operation of the voluntary agreement. The operation of the guidance will be reviewed after 18 months. If there is evidence that the voluntary arrangement is demonstrably not working it is the view of the Government that the voluntary arrangement should be put on a statutory basis.

7 Tripartite Endorsement

7.1 It is the agreed view of Government, the CBI in Northern Ireland and the ICTU that this voluntary guidance, which will require detailed working through by employing organisations, represents an important step forward in the reintegration of ex prisoners with conflict-related offences.

7.2 The parties to the guidance also acknowledge that in working through this process, the onus of proving material relevance lies with the employer. Unless the employer can argue convincingly that the conviction is materially relevant and manifestly incompatible with the post, the applicant (who at this stage is, all other things being equal, the preferred candidate for the job) should be offered the post.

7.3 The three parties to this guidance are also of the view that before coming to a decision, the employer should consider carefully the following. Namely that:

• the onus of proof is on the employer to show material relevance;
• the conviction must be manifestly incompatible with the position in question;
• the seriousness of the offence is not in and of itself enough to make a conviction materially relevant; and
• it will only be in very exceptional circumstances that a conviction will be relevant.

7.4 Finally, following the recent Fair Employment Tribunal judgement in McConkey and Marks v the Simon Community the Government has initiated, as a matter of urgency, a review of fair employment legislation to consider whether there is a need to amend Article 2 (4) of the Fair Employment and Treatment Order 1998 in the Tribunal words
…..to reflect those changed circumstances [in light of the Good Friday Agreement] and not least to reflect the terms of the said Agreement with its reference to the introduction of measures to facilitate the reintegration of prisoners into the community in the area of employment

, , ,

  • On the broader scheme of things, it wasn’t really a sweetner as once one the conflict had been legitimised through the GFA process then the outworkings were always justifiable and indeed legitimately ratified by the people.

    Before the GFA was endorsed it was recognised that it was conflict-resolution concession-led in order to diffuse the situation of tension, but also to maximise ownership of the process of those isolated yet at the core of the conflict itself. However, things have moved on successfully enough to stop the will to kill save that of stones over peace walls.

    Of importance though, I don’t see why people, who have been manipulated in the past, should suffer in the future for this as a minority group, whenever the more educated of those conflict leaders are seen conspicously in the corridors of power.

    Although, as it is non-statutory it lacks real bite. If it comes under Fair Employment legislation, in future, then I imagine the DUP would be up in arms (excuse the pun), as recourse through the courts regarding goods facilities and services, may just be too big a contradiction in terms for them.

  • Ian

    SF have long called for measures such as this, but didn’t make it a high profile issue for which they have been criticised by some nationalist commentators (including Feeney IIRC).

    However, they were probably wise to hold their tongues as the NIO, by announcing the guidance the day after the UVF made their statement (which included the phrase: “We ask the government to … remove the obstacles which currently prevent our volunteers and their families from assuming full and meaningful citizenship”) it appears to be a ‘sweetener’ for loyalists rather than republicans.

    Thus the DUP will make a few noises (Jim Wells has condemned the move) but will not use it as an excuse to refuse to cooperate in the institutions, which they surely would have done if it had been announced following the SF Ard Fheis on poliving, for example.

    SF will be quietly pleased with this development, but will say little about it.

  • DC

    Ian,

    I don’t agree with your assessment about sweeteners to one group as alluded to in the last paragraph of the article it is the creature of the GFA itself and its instigators:

    “…to reflect the terms of the said Agreement with its reference to the introduction of measures to facilitate the reintegration of prisoners into the community in the area of employment”

    So in many ways it is good that the DUP are all voiced out over this because you can’t voice concerns again over something that you are now in the driving seat off, unless you want to look ridiculous.

    And with both Martin and Ian letting this go out using the OFMDFM wires, it looks like these two pals are getting along without such a “battle a day” afterall. As while the 8th May is go-live day for the cameras these two are already at their work if recent press is anything to go by.

  • Ian

    “I don’t agree with your assessment about sweeteners to one group as alluded to in the last paragraph of the article it is the creature of the GFA itself”

    DC, every single policy that the government has introduced that has been decried by Unionists as a “sop to Republicans”, part of a “one-way street of concessions”, was in fact an aspect of the GFA. But that didn’t stop the DUP and antis in the UUP from using such measures as excuses to try and derail power-sharing.

    Dressing this up as s “sop to loyalism” is a smart move on the NIO’s part, as it means Unionists are less likely to use it as an excuse for stalling. (A bit hypocritical, you might think, but that’s par for the course.)

  • Dread Cthulhu

    D-C: “Of importance though, I don’t see why people, who have been manipulated in the past, should suffer in the future for this as a minority group, whenever the more educated of those conflict leaders are seen conspicously in the corridors of power. ”

    Alright, then riddle me this. For the sake of argument, two men apply for the same position, say, a welder. Each has the same set of criminal acts on their record, an execution-style murder meant to eliminate a witness to another felony level crime. Are you suggesting that the fella who was a paramilitary hood should have a leg up solely on the grounds he was a paramilitary hood? Because that is what it sounds like it amounts to.

  • DC

    No the whole point of the process is so that convictions don’t come to the initial sifting so therefore any job is offered out provisionally on ability/competence subject to criminal record checks afterwards, which if your an ex-prisoner should be viewed as spent like the other guy’s record. Employer ought not to discriminate on political opinions/actions committed.

    So potential employee should already have been offered job over the other based on ability/experience. The guidance leans heavily on doing this, offer job then follow-up with criminal checks.

  • Dread Cthulhu

    D-c: “No the whole point of the process is so that convictions don’t come to the initial sifting so therefore any job is offered out provisionally on ability/competence subject to criminal record checks afterwards, which if your an ex-prisoner should be viewed as spent like the other guy’s record. Employer ought not to discriminate on political opinions/actions committed.”

    I would say you’re inaccurate, in so far as, under the guidelines, the employer *WOULD* be allowed to consider the actions of the “ordinary” criminal, but not those of the allegedly “political” criminal.

    These mooks *VOLUNTEERED* to go play bad guy… let them lie in the bed they made.

  • It seems then like it is reducing terrorist offences as spent, pretty much reducing life sentences to 2.5yrs for those convicted of such life terrorist offences in Northern Ireland pre April 98.

    For those with 2.5 yrs conviction or less it takes ten years for it to be spent and 10 years have pretty much elapsed.

    So the other person who is a non-political murderer will be deemed as always having an unspent conviction as you say and would be considered.

    But your argument is still void, as it currently stands sifting ought to be on ability first then offering job provisionally and then rounding of finally with checking records – prior to getting the contract out. So it should rule out your framed question.

    The GFA was always going to line something like this up, and the people endorsed it, but the important thing to remember is that there isn’t much in the way of any affirmative legislative action, should employers run checks and decide the ex-prisoner would be better served elsewhere.

    So employers may well be in a position to refuse and discriminate against what is likely to become voluntary best-practice in regards to employment of ex-prisoners.

    Unless, however, in the not so distant future (18months) it comes under Fair Employment tribunals or as stated may be transposed over into Goods, Facilities and Services discrimination, which could see cases ran through the courts.

    Personally the impact of this is likely to be minimal as they are a minority group seeking a way forward and rightly so when you appreciate the situation which has unfolded in the last 10 years in its entirety.

    The way in which the whole GFA processing has been conducted this seems to be a natural follow on, tying up a few loose ends.

    I still don’t see it as a sweetener due to it being contained in the context of the GFA and the way in which it will be applied ensures that every ex-prisoner pre-98 is treated in the same way.

  • Dread Cthulhu

    D_C: “But your argument is still void, as it currently stands sifting ought to be on ability first then offering job provisionally and then rounding of finally with checking records – prior to getting the contract out. So it should rule out your framed question. ”

    Only A) if you accept the order proscibed as the appropriate order to do things and B)If you trust the state not to make this foolishness mandatory.

    However, to frame it in a fashion that you will accept, same scenario, but the employer initially decides to hire the ordinary hood, does the background check and disqualifies him. He then moves on to the terrorist, finds the same thing and is now stuck.