Tribunal oversteps in ordering 'gist' disclosure in national security case
An Employment Appeal Tribunal (EAT) decision provides useful clarity on the tribunal’s limited role in evaluating national security risks during closed proceedings.
Background
In Home Office v Shah, the EAT considered how far an employment tribunal can go in scrutinising national security risks when dealing with closed evidence. While most employers are unlikely to encounter such proceedings, the case serves as a useful reminder of the principles that apply when sensitive material cannot be disclosed in full and the limits on what tribunals can assess in these situations.
The claimant, S, was employed as an immigration officer but lost his job after his security clearance was withdrawn. He brought a sex discrimination claim, alleging that the decision to withdraw his clearance and his subsequent dismissal had been influenced by his sex.
The Home Office denied the allegation but did not reveal the reasons for the withdrawal of clearance in the open parts of the proceedings. The tribunal excluded S and his representative from part of the hearing and appointed special advocates to represent his interests during the confidential aspects. The Home Office submitted a confidential version of its defence that only the tribunal and special advocates could see, setting out the national security grounds behind its decision.
At a closed hearing, the tribunal ordered that S be given the 'gist' of the Home Office’s confidential defence. While the tribunal accepted that the government’s view of the national security risks should be given significant weight, it said it needed to consider whether providing the gist might cause any harm and, if so, how serious that harm might be.
The EAT’s decision
The EAT allowed the Home Office’s appeal. Although the tribunal was right to conclude that the government's assertion of risk could not go entirely unchallenged, it overstepped the mark by attempting to evaluate the nature and seriousness of the risk itself. That level of assessment was inconsistent with the narrow and deferential approach the tribunal is expected to take in these circumstances.
The EAT confirmed that employment tribunals are not equipped to judge national security risks and must acknowledge their limited role. It also noted that where the disclosure of information would be contrary to national security, the tribunal is under a duty to prevent it—though how this duty fits with the balancing exercise required in closed proceedings has not yet been fully explored in case law.
Learning points
The case highlights how employment tribunals handle sensitive material where national security is engaged. In such circumstances, the tribunal may appoint special advocates and hold closed hearings, but its ability to interrogate the state's assessment of risk is highly constrained. For employers operating in sectors where security clearance is relevant, the decision underscores the importance of following the appropriate procedures and being prepared for limited disclosure where national security considerations apply.
More broadly, the case serves as a reminder that sensitive or confidential material can raise complex procedural issues in litigation. While full disclosure remains the starting point in tribunal proceedings, there may be limited and exceptional circumstances where the approach to disclosure requires careful consideration.