Background:

The claimant was employed by the respondent and she revealed to a journalist some information concerning the evacuation of personnel from Afghanistan. As a result, the claimant’s security clearance was withdrawn and she was subsequently dismissed. The claimant argued that the passing of information amounted to a protected disclosure within the remit of the Employment Rights Act 1996. There were issues in relation to the method by which the hearing should be run based upon national security issues.

The respondent sought that the hearing be before a national security employment judge, in private and in a secure hearing room. Additionally, they sought to redact certain documents but that unredacted versions could be inspected by the claimant and her representatives. Additionally, they requested that judgments and reasons would be reviewed by the Minister prior to publication. It was for the Tribunal to determine the extent to which these applications would be successful.

Outcome:

The main issue arose in relation to having the documentation rather than just a right to inspection. The Tribunal noted the question was whether it was necessary and expedient.  In terms of the three documents which were in question, the Tribunal allowed for the order to be made allowing only for inspection of the unredacted copies rather than providing copies.   The Tribunal noted that there needs to be an equality of arms between the parties in litigation. Whilst there is some disadvantage to the claimant in having to inspect it was held that allowing access does mitigate the disadvantage suffered. Interestingly it was argued by the respondent that the Tribunal should make an order prohibiting the claimant or their representative from making a verbatim note of the documentation when inspecting. The Tribunal question whether they had the power to make such an order but stated that they would not even if they did have such power. The point being that it was not necessary on the basis that the Government entity could remain silent about someone saying they had seen a document compared to someone producing said document.

Practical Guidance for Employers:

This case demonstrates issues that can arise when national security issues could be part of the proceedings. In this case, it demonstrates the necessary and expedient approach to be adopted by the Tribunal/Courts where these issues do arise. This has taken shape through allowing inspection rather than copies of the documentation with the Tribunal looking at it from the perspective of risk and the approach the Government department could take if it had been leaked.

The full case is here: 
https://www.gov.uk/employment-tribunal-decisions/ms-c-stewart-v-foreign-commonwealth-and-development-office-2204590-slash-2022