APPEARANCES
| For the Appellant |
MS DINAH ROSE and
MR BEN JAFFEY
(of Counsel)
instructed by:
The Human Rights Litigation Unit
Liberty
21 Tabard Street
London
SE1 4LA |
| For the Respondent |
MR JONATHAN SWIFT
(of Counsel)
Instructed by;
Messrs Lewis Silkin Solicitors
12 Gough Square
London
EC4A 3DW |
SUMMARY
Unfair Dismissal
S10(1) of the Employment Tribunals Act 1996, whereby an employment tribunal must dismiss a complaint of unfair dismissal if the action complained of was taken for the purpose of national security, can be relied upon by all employers, who need only prove that their actions were for that purpose, and do not carry the burden, where the reason is the refusal of security clearance by a Government agency, of proving the underlying facts: but the action they must justify is the unfair dismissal, not just the dismissal, and consequently s98(4), including any question of whether redeployment was possible, must be addressed and shown to fall within s10(1).
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
- This has been the hearing of an appeal by B against two decisions of the Employment Tribunal sitting at Watford, both made at a hearing on 31 March and 6 April 2004, by judgments severally handed down on 13 April 2004. By consent, the Applicant is known as B, and the decisions relate to B's claim for unfair dismissal by BAA plc, the Respondent. The two decisions were made at the hearing of a preliminary issue, by which the Respondent, relying upon s10 of the Employment Tribunals Act 1996 ("the ETA") and/or s19(2) of the Aviation Security Act 1982 ("the 1982 Act"), sought that B's complaints should be dismissed on the ground that B's dismissal, arising out of the refusal by the Department for Transport
("the DfT") of Counter Terrorist Check ("CTC") clearance pursuant to the National Aviation Security Programme ("NASP") established under the 1982 Act, was for the purposes of safeguarding national security and/or was not justiciable by virtue of s19(2) of the 1982 Act.
- By its first decision, the Employment Tribunal unanimously refused to stay the proceedings, as B sought, by reference to B's then intended commencement of proceedings in the Administrative Court to challenge the DfT's refusal of CTC clearance. By its second decision, the Employment Tribunal unanimously dismissed B's complaint of unfair dismissal. The Tribunal also dismissed other complaints by B of breach of contract and breach of s92 of the Employment Rights Act 1996 ("the ERA"), but no appeal is brought against those decisions. B was represented below by Mr L Wilson of Counsel and before us by
Miss Dinah Rose and Mr Ben Jaffey of Counsel, acting pro bono. Mr Jonathan Swift of Counsel has represented the Respondent both below and before us.
- Although when the appeal was opened by Miss Rose, issues were for some time discussed which ranged over the applicability of s98(1)(b) of the ERA [substantial other reason] and s98(2)(d) [contravention of statutory duty or restriction] it soon became common ground that such issues had not been before the Employment Tribunal nor are before us, but yet remain alive for consideration if this appeal were successful, because of the fact that this was a preliminary hearing by the Employment Tribunal: the preliminary issue was taken, and resolved in favour of the Respondent, leaving the substantive defences under s98 (both of them relied on in the Notice of Appearance) unnecessary to be resolved, but, equally, not precluded, if resolution proved necessary. Nonetheless consideration of those subsections still remained material on this appeal, although only as a background or context to the submissions.
The Legal Framework
- S10(1) of ETA reads as follows:
"If on a complaint under
(a) s146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (detriment: trade union membership), or
(b) s111 of the Employment Rights Act 1996 (unfair dismissal),
it is shown that the action complained of was taken for the purpose of safeguarding national security, the employment tribunal shall dismiss the complaint."
- The 1982 Act provides in material part as follows:
"14 (1) Subsection (1A) below applies to any person who
(b) is the manager of an aerodrome in the United Kingdom
(1A) Subject to the following provisions of this section, the Secretary of State may give a direction in writing to any person to whom this subsection applies requiring him to take such measures for purposes to which this Part of this Act applies as are specified in the direction
(b) in the case of a direction given to a person as the manager of an aerodrome, in respect of that aerodrome
(7) Any person
(a) who
without reasonable excuse, fails to comply with the direction given to him under this section
shall be guilty of an offence
19(2) In so far as any such as any direction requires anything to be done or not done in the United Kingdom, the direction shall have effect notwithstanding anything contained in any contract (whether a United Kingdom contract or not) or contained in, or having effect by virtue of, any other Act or any rule of law; and accordingly no proceedings (whether civil or criminal) shall lie against any person in any United Kingdom court by reason of anything done or not done by him or on his behalf in compliance with such a direction."
The Factual Framework
- The facts are very briefly summarised. B started work for the Respondent as a security guard at one of its airport terminals, and was required to be subject to CTC clearance. B's contract of employment provided, by Clause 1 under "Position", that B would be employed by the Respondent "initially as a Security Guard", working at an identified airport, although "from time to time where there is an operational need you may be required to work at other locations on a temporary or permanent basis". By letter dated 10 October 2003 the DfT wrote to the Respondent under the heading "UK NATIONAL SECURITY PROGRAMME REFUSED SECURITY CLEARANCE CTC" as follows, after referring to a security questionnaire submitted on behalf of B: "We are unable to grant clearance; on information obtained we have reason to doubt the candidate's reliability". The Respondent wrote on 14 October to B under the heading "REFUSED SECURITY CLEARANCE CTC", and, after informing B of the right to appeal against the DfT's decision, continued "Should you wish to take this option you must appeal within three days of this letter. To allow time for the appeal procedure to take its course, you will be suspended from duty, with pay, for seven days or
until a decision has been made on your clearance status", and it gives the information as to the person at the DfT to whom such appeal must be made, in writing. The letter continued:
"Alternatively should you decide you do not wish to appeal, it is with regret that your contract of employment will be terminated with immediate effect. This will also be the case should your appeal be unsuccessful."
- B completed and returned the tick box at the bottom of the letter, indicating an intention to appeal to the DfT within three days of that letter, and did so by letter dated 15 October in the following terms:
"On 14 October 2003 I was suspended on the grounds of CTC clearance failure. I was not given any reason why I was not cleared, instead I was told I would be informed by post. However when I received the letter today on 15 October 2003 it also failed to state any reason why I had not received clearance. I wish to appeal and I have been informed I have three days to do so, but in order to appeal I need to know on what grounds my security clearance has been unsuccessful."
- The DfT, by Mr Skillen, who was the recipient of B's letter, responded by letter dated 16 October as follows:
"UK NATIONAL AVIATION SECURITY PROGRAMME DIRECTION 11 selection of security staff.
I refer to your letter of appeal dated 15 October.
I am not able to answer your question. The above legislation clearly states that "no explanation for failing a check will be given" by the Department."
- This reference to legislation was not to the Act itself, but to Direction 11, which is a direction issued under the Act. It is common ground that that direction was made under the Act, is material to the carrying out of CTC checks and to the consequences of the failure of such a check by a relevant employee, applies to the Respondent, and contains the words quoted.
- The Respondent made an enquiry of the DfT by email as to whether B had appealed, and the reply came back from Mr Skillen by email with the response "I have to say there is absolutely no chance" of B being cleared on appeal, continuing "this is one of those
cases where we cannot even hint why". The Respondent then held a meeting with B on
4 November 2003, at which she attended and was represented, and sent a letter of the same date to B as follows:
"The purpose of the meeting was to discuss the refusal by
DfT
to provide you with
CTC clearance following your appeal. At the meeting I explained the reasons for Counter Terrorism Checks and the process around obtaining them. I also explained the reasons that may lead to a CTC not being cleared. I also indicated that I am not provided with any information from the DfT as to why your CTC has not been cleared
I asked you if you could think of any reason why the CTC had been refused. You stated that you and your family could not think of any reason, having given it considerable thought.
You asked if you could be considered for other roles within the organisation which did not require a CTC. In response to this, I said that having considered this option with the Airport Security Manager, a decision was reached that this could not be facilitated.
I then confirmed that I was terminating your employment with immediate effect, due to your not being [granted] your CTC clearance. I stated you are entitled to 4 weeks pay in lieu of notice
Finally I advised that you do have the right of appeal against my decision
"
- B made such appeal by letter dated 10 November 2003, and an appeal hearing was conducted on 17 December, when B was again represented. By letter dated 23 December B was informed that the appeal against the dismissal "for failing Counter Terrorism Clearance" was dismissed.
- At the outset of the Employment Tribunal hearing, B's Counsel made an application for a stay of the proceedings, as set out in paragraph 2 of the first judgment "on the basis that it was the Applicant's intention to apply to the [Administrative] Court to challenge the
Department's decision to refuse to grant
CTC clearance. It was the Applicant's contention that the Department made the decision without explanation or justification and without conducting a substantive appeal. It was alleged that this violated the Applicant's rights under Article 6 of the Human Rights Act 1998". The Employment Tribunal refused the stay. In paragraph 5 of the judgment it states as follows:
"Even although no parallel proceedings have been commenced in the case before us, they are contemplated. We therefore reason by analogy. The proceedings before the [Administrative] Court are in essence proceedings for Judicial Review in the form of a challenge of the Department's refusal without explanation to grant CTC clearance to the Applicant
The issue before us is what was the reason for the Applicant's dismissal by the Respondent and whether that reason is, as alleged by the Respondent, one taken for the purposes of safeguarding national security. Thus, the issues are entirely different, as indeed are the parties."
- The Tribunal set out in its second judgment the issues which it had to decide as being:
"3.1 What was the reason for the Applicant's dismissal?
3.2 Whether the reason was for the purposes of safeguarding national security?"
- Having summarised the history, as we have done, the Employment Tribunal made findings with regard to the internal appeal:
"5.9
The decision to dismiss was upheld. Ms Hicks told us that she had little discretion in the light of [B's] having failed CTC clearance as [B] could no longer work as a Security Guard. She considered whether she could redeploy the Applicant to work in an area involving security duties. She decided that she could not take the risk in view of [the DfT opinion that the Applicant was] "unreliable". She did not know the reason for the refusal of the CTC clearance. [B] had been trained as a Security Guard, and was therefore in possession of information which most employees do not have. She took into consideration the heightened risk of terrorist threat since the tragic events of 11 September 2001. She weighed up these various factors and took the decision which she did. We accept her evidence."
- The Tribunal's conclusion, after setting out the law and the competing submissions, was contained in paragraphs 7.2 following. After finding that the Applicant was a security guard, a term of whose contract was the need for "CTC clearance to secure and remain in post", the Tribunal continued:
"7.2
The Applicant was refused CTC clearance and was dismissed as a result. The question therefore arises whether the Applicant was dismissed for the purposes of safeguarding national security. Under the provisions of s10
the burden of proof is on the Respondent to show that this was the reason for dismissal. No other reason for the Applicant's dismissal has been advanced before us. It is not for us to consider whether the Respondent acted reasonably in treating its reason as a sufficient reason to dismiss. We have to be satisfied that the Respondent has proved that the reason for the Applicant's dismissal was for the purposes of safeguarding national security.
7.3 The fact that the Applicant failed to obtain CTC clearance meant that [B] could not be employed as a Security Guard. Since there is a direct link between the prevention of acts of violence by terrorists and national security, and since the Applicant was dismissed from employment as a Security Guard because [of the failure] to obtain CTC clearance, we are satisfied that the Respondent has proved that the reason for [B's] dismissal was for the purpose of safeguarding national security. Was it the effective reason?
7.4 We have considered whether the Respondent's refusal to redeploy the Applicant for a post not requiring CTC clearance was the effective reason for the dismissal. We conclude that it was not. It is clear that the Respondent considered redeploying [B] but rejected the suggestion to do so. The Applicant could no longer be employed as a Security Guard. Any offer of redeployment must therefore amount to the termination of [B's] original contract and
re-engagement would have had to have been under a new contract which did not require CTC clearance. Thus, the reason for the Applicant's dismissal from [the] original contract was
failure to secure CTC clearance. On balance therefore we are satisfied that the Applicant's contract was terminated for a reason which related to the purposes of safeguarding national security. Under the provisions of s10(1)
we therefore have no alternative but to dismiss [B's] complaint and this we now do."
The Appellant's Submissions
- Ms Rose puts her submissions on this appeal on the following bases:
16.1 S10(1) requires a full fact-finding exercise, which was not carried out by this Tribunal ("Fact-finding").
16.2 Further, or in the alternative, s10(1) is not available to a Respondent other than a Crown employer or other entity in a position to prove, if necessary in secret, the requisite facts ("S10 unavailable").
16.3 Article 6 of the European Convention on Human Rights is engaged. If the
fact-finding exercise cannot be carried on in the Employment Tribunal, then it should be stayed pending the hearing of the judicial review against the DfT
("Article 6").
16.4 The Employment Tribunal's conclusion, in paragraph 7.4, that the refusal to redeploy the Applicant was not the effective reason for her dismissal, was wrong in law ("effective reason").
1. Fact-Finding
- The starting point for the Applicant's case is the decision of the European Court of Human Rights in Tinnelly & Sons & Others & McElduff & Others v United Kingdom [1998] 27 EHRR 249. This was a decision in respect of 2 cases taken to the Court from Northern Ireland, where (so far as concerns the more relevant, that of McElduff), a claim was made in the Northern Ireland equivalent of the employment tribunals (the Fair Employment Tribunal) for unlawful discrimination. The Secretary of State issued a certificate under s42 of the Fair Employment (Northern Ireland) Act 1976. That section provides as follows:
"(1) This Act shall not apply to an act done for the purpose of safeguarding national security or of protecting public safety or order.
(2) A certificate signed by or on behalf of the Secretary of State and certifying that an act specified in the certificate was done for a purpose mentioned in subsection (1) shall be conclusive evidence that it was done for that purpose."
- The Court found (at paragraph 79) that "the issue by the Secretary of State of section 42 certificates constituted a disproportionate restriction on the applicants' right of access to a court or tribunal", and that there had been a breach of Article 6(1) of the Convention. The Court concluded that the conclusive certificate prevented what the Applicants sought, namely "ascertaining whether there existed any factual basis for the alleged risk or threat which the Tinnelly firm and its workforce represented for national security" (paragraph 64). Tinnelly was followed by similar decisions: Devlin v UK [2002] 34 EHRR 43 and Devenney v UK
[2002] 35 EHRR 24.
- Ms Rose then explained the impact on UK legislation of those decisions, namely by way of consequential amendment to s10 of ETA. Prior to such amendment, made by the Employment Relations Act 1999 as from 16 July 2001, the present s10(1) was s10(4) of the unamended section, in identical terms. It was followed by s10(5), which provided for a conclusive certificate, along the lines of the s42(2) certificate in the Northern Ireland cases. It provided that, with certain immaterial exceptions:
"a certificate purporting to be signed by or on behalf of a Minister of the Crown and certifying that the action specified in the certificate was taken for the purpose of safeguarding national security is for the purposes of subsection (4) of this section conclusive evidence of that fact."
This subsection was entirely repealed and no longer subsists in the existing s10.
- The first three subsections of the unamended s10 used to read (leaving out references to issues of confidential information, of no relevance to national security) in material part as follows:
"(1) A Minister of the Crown may on grounds of national security direct an industrial tribunal to sit in private when hearing or determining any proceedings specified in the direction.
(2) Industrial tribunal procedure regulations may enable an industrial tribunal to sit in private for the purpose of
(a) hearing evidence which in the opinion of the tribunal relates to matters of such a nature that it would be against the interests of national security to allow the evidence to be given in public
"
- The confidential information provisions are now dealt with quite separately in a new s10A of ETA. As will be seen, what was old s10(1), set out above, has now been subsumed under a new s10(3). As will appear, there are, and were, such "Industrial tribunal procedure regulations".
- The old s10(1), and that part of the old s10(2) which dealt with national security matters, as set out above, are now much more fully dealt with in the new s10, as follows:
"(2) Employment tribunal procedure regulations may make provisions about the composition of the tribunal
for the purposes of proceedings in relation to which
(a) a direction is given under subsection (3), or
(b) an order is made under subsection (4)
(3) A direction may be given under this subsection by a Minister of the Crown if
(a) it relates to particular Crown employment proceedings, and
(b) the Minister considers it expedient in the interests of national security
(4) An order may be made under this subsection by the President or a Regional Chairman in relation to particular proceedings if he considers it expedient in the interests of national security.
(5) Employment tribunal procedure regulations may make provision enabling an Minister of the Crown, if he considers it expedient in the interests of national security
(a) to direct a tribunal to sit in private for all or part of particular Crown employment proceedings;
(b) to direct a tribunal to exclude the applicant from all or part of particular Crown employment proceedings;
(c) to direct a tribunal to exclude the applicant's representatives from all or part of particular Crown employment proceedings;
(d) to direct a tribunal to take steps to conceal the identity of a particular witness in particular Crown employment proceedings;
(e) to direct a tribunal to take steps to keep secret all or part of the reasons for its decision in particular Crown employment proceedings.
(6) Employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to do anything of the kind which a tribunal could be required to do by direction under subsection (5)(a) to (e).
(7) In relation to cases where a person has been excluded by virtue of subsection (5)(b) or (c) or (6), employment tribunal procedure regulations may make provision
(a) for the appointment by the Attorney General
of a person to represent the interests of the applicant;
(b) about the publication and registration of reasons for the tribunal's decision;
(c) permitting an excluded person to make a statement to the tribunal before the commencement of the proceedings, or the part of the proceedings, from which he is excluded."
- The Regulations referred to in s10(5) and (6) (and formerly in unamended s10(2)) are to be found in Rule 8 of the 2001 Rules, in Schedule 1 of the Employment Tribunal's (Constitution etc) Regulations 2001. The Regulations relating to the composition of the tribunal, referred to in new s10(2), are contained in paragraph 6 of the 2001 Regulations themselves.
- Ms Rose's submission therefore, by reference to the 'legislative history' and the impact of the Tinnelly line of cases, is that, the provision for the conclusive certificate having been removed, it was replaced by a much fuller system for the proof of issues involving national security, including, if necessary, the appointment of a special advocate under new s10(7)(a). The provision we are now concerned with, s10(1), has been moved to the front of s10, decoupled from the repealed old s10(5) relating to conclusive certificates, and is instead followed, and therefore supplemented, by the provisions allowing either a Minister of the Crown or an Employment Tribunal President or Regional Chairman to implement special procedures.
- Ms Rose uses this 'legislative history' contention to support her proposition that there is now no room for anything other than the strict factual proof of the matters which establish the national security interest relied upon for the dismissal of an employee. She couples this with her argument based upon construction noting the use of the words in s10(1), which certainly places the onus upon the party relying upon s10(1), that it must be "shown that the action complained of was taken for the purpose of safeguarding national security". Finally she submits that, even if "ordinary" principles of construction do not lead to the employer relying on s10(1) to prove the "factual basis for the alleged risk or threat", by virtue of the "immediate and dramatic effect upon the applicant, removing his means of livelihood" (paragraph 27 of Devenney) s3 of the Human Rights Act 1998 would require a court or tribunal to 'read down' the section so as to bring it in compliance with the Convention (see Ghaidan v
Godin-Mendoza [2004] 3 WLR 113, esp at paras 25-35, 38-50 and 106-124 and
Attorney General's Reference (No 4) of 2002 Sheldrake v DPP [2004] UKHL 43 at paras 28-29) and thus avoid what in paragraph 28 of its judgment in Devenney the Court called 'executive ipse dixit'. In those circumstances, if BAA wished to rely on s10, then it was for them to prove that the Applicant was a threat to national security, and that could only be done by establishing all the facts. If those facts were not, as they obviously are not, in the possession of the Respondent, then they must attempt to obtain such information, by way of witness summons or otherwise, in secret proceedings to be directed and held pursuant to s10(6) of ETA and the relevant Employment Tribunal Regulations and Rules.
2. S10 Unavailable
- Ms Rose's alternative submission was more fully unveiled in reply. Mr Swift, apart from other submissions to which we will return, emphasised the difficulty or near impossibility of a respondent, who has no control over, or access to, security information, in fact being able to prove such a case pursuant to s10(1), even through the use of the procedure referred to. He did not canvass, but might have, the question as to whether in fact the respondent could even take any part in such procedure itself. It is one thing to provide that an applicant would have to be represented by a special advocate, but it is difficult to see how a respondent either could have access to the information or in fact take part in the proceedings, or see any of the documents. Ms Rose's alternative submission effectively seeks to meet that. She submits that s10(1) would serve a perfectly satisfactory purpose if, in accordance with s3 of the
Human Rights Act, it were read down so as not to be available at all to a respondent who cannot prove the facts underlying the alleged national security risk. Effectively that would mean that only a Crown employer, or similar, would be able to avail itself of s10(1), but Ms Rose submits that that is no hardship. If such a respondent is not in a position to prove the necessary facts to bring the case within s10(1), then it will have to fall back upon the provisions of s98(1)(b) and s98(2) of ERA. These read as follows:
"98(1) In determining for the purposes of this part whether the dismissal of an employee is fair or unfair it is for the employer to show
(a) the reason (or, if more than one the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part of on that of his employer) of the duty or restriction imposed by or under an enactment."
- If a respondent could only rely on those "ordinary" defences to a claim for unfair dismissal then, submits Ms Rose:
27.1 in either case it would have to establish that the dismissal for the reason alleged was fair within s98(4) of ERA.
27.2 in relation to the s98(2)(d) defence, a respondent would, in her submission, take the risk that there was, in fact, no contravention, or that there was some error on the part of the employer, or (and this is more contentious) that the "enactment" imposing, or purportedly imposing, the duty or restriction was void, pursuant to, or by analogy with, the Employment Appeal Tribunal decision in Bouchaala v Trust House Forte Hotels Ltd [1980] IRLR 382.
3. Article 6 Engaged
- This is obviously simply a reinforcement of a case above by reference to the European Court of Human Rights decisions and her construction argument, but it meets Mr Swift's case that s10(1) of the ETA does not amount to an interference with any right arising under the Human Rights Act 1998, but seeks, as a matter of substance, to define the scope of the statutory right not to be unfairly dismissed: so that, insofar as the words in s10(1) are simply descriptive of the right which exists, they do not amount to an interference with any right of access to a court under Article 6. Ms Rose submits that this contention is wholly inconsistent with the conclusion of the Court at para 62 of Tinnelly. She submits that, if there is to be any attempted use of s10(1), the proceedings should have been, and the appeal now should be, stayed pending the hearing of the judicial review application, to be heard in the Administrative Court between the Applicant and the DfT, in which, she informs us, a special advocate has been appointed on behalf of the Applicant.
4. Effective Reason
- On the assumption, contrary to her primary submissions, that the Tribunal was entitled or able to perform, the exercise under s10(1), she submits that it erred in law in paragraph 9.4 by reference to its conclusion as to the "effective reason". In answer to the reasoning in paragraph 9.4 of the judgment, she submits that the Tribunal erred in law in concluding that the Applicant's employment contract would have had to have been terminated in order for there to be redeployment. She submits that there was no reason why the parties could not have agreed to vary B's contract by changing the nature of the duties, without any termination.
The Respondent's Submissions
- Mr Swift's submissions can be summarised as follows:
30.1 S10(1) does apply and is available, and was accurately and adequately addressed by the Tribunal ("S10 available").
30.2 The fact-finding exercise as performed by the Tribunal was correct and sufficient ("ET's fact-finding").
30.3 Article 6 is not engaged. It is ousted or limited by the legitimate purpose of national security. The Tinnelly cases turned on the lawfulness of the conclusive certificate, and none such was in issue in this case ("Article 6 not engaged").
30.4 The Tribunal made its findings of fact as to the effective reason, and 'fairness' within s98(4) of ERA does not apply under s10(1) of ETA ("effective reason").
1. S10 Available
- Mr Swift submitted that s10(1) is plainly available and appropriate, on any construction. The positioning of this subsection within s10 is of no significance, but, in any event, the following subsections of s10 only arise where they are required, which they are not here. There are two questions which the Tribunal was required to, and did, ask:
31.1 What was the reason for the dismissal? It is common ground, or, in any event, was found by the Tribunal, that the reason was the refusal of the clearance.
31.2 Was the dismissal for the purpose of safeguarding national security? After hearing evidence called and cross-examined, the Tribunal found that, so far as the Respondent was concerned, that was the case.
2. ET's Fact-finding
- This is really the nub of Mr Swift's argument. He submits that the Respondent did dismiss, and was found to have dismissed, because of the refusal of clearance, not because of what conduct, if any, of the Appellant had led, rightly or wrongly, to her being refused clearance. Thus even if the Respondent were able to establish the true position, by witness summonsing or otherwise (if that were possible) those in or behind the DfT who had the information, or made the decision, about the refusal of the clearance, that would not assist as to why B was dismissed. Not only would it be putting an impossible onus on the Respondent, but it would be placing a burden which could not exist until long after the dismissal, and the facts, if and when explored, were not what it relied on for its dismissal of the Appellant. The Respondent did not dismiss because the Appellant had, or had not, committed some identified suspicious act, but because the Appellant had for reason, good or bad, not known to the Respondent, but known to the DfT, been refused clearance. Mr Swift points to the equivalent sections in the discrimination statutes, for example:
32.1 Sex Discrimination Act 1975 s52(1):
"Nothing in Parts II to IV shall render unlawful an act done for the purposes of safeguarding national security".
32.2 Race Relations Act 1976 s42:
"Nothing in Parts II to IV shall render unlawful an act done for the purposes of safeguarding national security if the doing of the act was justified by that purpose".
32.3 Disability Discrimination Act s59(2A):
"Nothing in
(a)Part 2 of this Act, or
(b)Part 3 of this Act to the extent that it relates to the provision of employment services
makes unlawful any act done for the purpose of safeguarding national security if the doing of the act was justified by that purpose."
We shall call these the 'discrimination provisions'. In cases falling within them, the Respondent would need to establish that the discriminatory act complained of was for the purpose of national security. In this case the Respondent was required to prove that the dismissal was for such purpose, and the Tribunal so found.
Article 6 not engaged
- Article 6 must be looked at in context. Mr Swift referred to paragraph 72 of the judgment in Tinnelly, which makes it clear that the right under Article 86 is not absolute, but may be subject to limitations: and pointed for example to Leander v Sweden [1987] 9 EHRR 433 at para 59 for the proposition that, in situations that relate to the safeguarding of national security, the legislature is to be afforded a wide area of judgment within which to strike a balance between competing considerations. He also referred to paragraph 26 of the judgment in Devenney:
"The Court accepts that the protection of national security is a legitimate aim which may entail limitations on the rights of access to a court, including withholding information for the purposes of security. As in the Tinnelly case therefore, it is necessary to consider whether there is a reasonable relationship of proportionality between the concerns for the protection of national security invoked by the authorities and the impact which the means they employed to this end had on the appellant's right of access to a court or tribunal."
- He submits that, in the Tinnelly line of cases, it was not s42(1) (the equivalent of s10(1)) which was found to be unlawful, but the s42(2) conclusive certificate. It was, in paragraph 28 of the judgment in Devenney referred to in paragraph 24 above, the "conclusive section 42 certificate which was tantamount to the removal of the courts' jurisdiction by executive ipse dixit". Here, there was no such conclusive certificate. The Respondent gave, and was tested as to, its explanation as to its reason for the dismissal and its purpose in doing so, and there was no conclusive certificate foreclosing such discussion. In the Tinnelly cases, where all the claims were of discrimination, and in a case where the discrimination provisions referred to above were to be relied upon, a respondent would need to justify whatever less favourable treatment was being alleged, by reference to its purpose being for the safeguarding of national security, and would need to do so without the benefit of any conclusive certificate. So too here. The Tribunal was accordingly right not to stay the proceedings, as the issues between the Appellant and the DfT, and any claims for damages against the DfT which might arise, were not issues involving the Respondent.
4. Effective Reason
- This, Mr Swift submitted, was a finding of fact. The Tribunal did not need to consider fairness, as s98(4) did not arise, and concluded, after hearing the evidence, that the refusal to redeploy, whether something that might be done under the contract or by variation of the contract or otherwise, was not the effective reason for the dismissal.
Our Conclusions
- S10(1) does apply. The subsection is plainly available to these Respondents. S10(1) is not restricted to Crown employment, but can arise in the context of any employment, just as it can arise in any context and in any employment in relation to the discrimination provisions set out in paragraph 32 above, which are in similar terms. Indeed the very structure of s10 supports this: in that s10(3), relating to the direction which may be given by a Minister of the Crown, would tend to apply in cases of, or analogous to, Crown employment, whereas the provision in s10(4) for the order that may be made by the ET President or a Regional Chairman may well arise in other circumstances.
- The Fact-Finding Exercise. We are satisfied that the Respondent is correct that the necessary fact-finding exercise is to prove what the reason of the Respondent was for a dismissal, and whether the dismissal for such reason was for the purpose of (not had the effect of) safeguarding national security: and not what the underlying facts were or turned out to be. Even assuming that a respondent was in a position to prove such facts, and was actually allowed to take part in the secret exercise which might be ordered under the Employment Tribunal Regulations and Rules, those facts, once established, would be of no relevance to the reason of the employer; the employer could not possibly have found out such facts at the time of the dismissal, even if it had been under some obligation to do so before dismissing. A dismissal for the purposes of national security, upon the refusal of a clearance, would, in those circumstances, be no different from a situation where an employer relies on a substantial other reason defence when dismissing an employee at the behest of an important customer or other relevant third party (e.g. Scott Packing & Warehouse Co Ltd v Paterson [1978] IRLR 166, Grootcon (UK) Ltd v Keld [1984] IRLR 302), when the employer is not required to justify the decision taken by the third party. No stay is accordingly appropriate pending the Judicial Review hearing.
- Article 6. We conclude, however, that, notwithstanding the national security context, a true and proper construction of s10(1), or certainly one which 'reads down' the subsection in accordance with s3 of the Human Rights Act 1998, requires that the impact of s98(4) of ERA should not be excluded. Ms Rose accepted in argument that, in a substantial other reason case such as referred to above, the employer is faced with an ipse dixit. But the difference there is that the third party's ipse dixit is not the end of the story. It is still necessary for the Tribunal to conclude that the employer acted reasonably in dismissing. We are satisfied that the same must apply to the impact of s10(1).
- We have no difficulty in coming to this conclusion. What must be shown by virtue of s10(1), on a complaint either under s146 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA") (detriment: trade union membership) or s111 of ERA (unfair dismissal) is that "the action complained of is taken for the purpose of safeguarding national security". In the case of s146, the action complained of might take many forms, but its nature would need to be proved before the impact of s10(1) could be applied to it. The act might involve threats or involve promises, involving making him or her become a member of a union or preventing him or her from doing so. In relation to s111, the complaint which can be laid to the employment tribunal is not that the employee was dismissed, but that he was "unfairly dismissed", and it is, in our judgment, that unfair dismissal which must be shown to be justified within s10(1). An employer seeking to rely on s10(1) must thus show not only, as in this case, that the removal of the Appellant from the position of security guard was required for the purpose of national security, but that the steps which were taken by way of dismissal were also so required, taking into account the issues which would normally need to be considered in a case of substantial other reason (see e.g. Gair v Bevan Harris Ltd [1981] IRLR 520 EAT: [1983] IRLR 368 CS), such as whether it was within the range of reasonable responses of the reasonable employer to dismiss rather than redeploy.
- We conclude that this is so upon an ordinary and proper construction of s10(1), particularly by considering the position of s146 of TULRCA. However, we are further fortified by looking at the 'legislative history'. We note the way that the old s10(5), providing for the conclusive certificate, was worded, as set out in paragraph 19 above. In the days when an employer would be able to rely on a conclusive certificate, it would only be for the purposes of relying on "the action specified" in the certificate. If, in this case, a certificate had been forthcoming, it might well be that all that would have been covered by the certificate would have been a requirement that the Appellant no longer be employed on one of the duties, or in one of the areas, specified by the Direction as necessitating the relevant clearance. It would not necessarily have certified that the dismissal, including the non-redeployment and the manner of the dismissal, were all for the purpose of national security. In any event, quite apart from construction on the above basis, we are satisfied that we ought to read down s10 in accordance with s3 of the 1998 Act, so as not to exclude consideration of fairness, and thus in some way mitigate the effect of the executive ipse dixit. This would, as we have indicated, bring the operation of s10(1), if established, into line with the operation of substantial other reason.
- Effective Reason. It can be seen therefore that we do not need to address what would appear to be the correct submission of Mr Swift that the decision in paragraph 7.4 of the Tribunal's judgment was one of fact. What is clear is that, having established what the reason for dismissal was, the Tribunal did not proceed to consider s98(4). Had it done so, there would, or could, have been argument that, either on contractual principles, by reference to the terms of the Appellant's existing contract referred to in paragraph 6 above, or by reference to s98(4) principles of fairness, redeployment could or should have been considered. It may well be, in the light of the findings in paragraph 5.9, that the Tribunal would nevertheless have found that the Respondent did consider the matter, and did act reasonably, or alternatively that the non-redeployment itself was justified as being for the purposes of safeguarding national security. We have no idea whether there was any evidence as to whether there was any job which could reasonably have been carried out by an employee who had been refused clearance (if for example it was not a job, or in an area, specified in the Direction), which it would have been unreasonable of the Respondent not to offer. In its findings of fact in paragraph 5.9 the Tribunal started, but because it did not consider 'fairness' did not complete, its task.
- The Employment Tribunal did not expressly consider the effect of s19(2) of the
1982 Act to which we have referred in paragraph 5 above. It was not materially addressed before us. For the same reasons as we have given above, we are satisfied that it would not wholly oust the jurisdiction of the Tribunal, at any rate on the basis of the facts as specifically found or addressed by this Tribunal. The Direction, made under the NASP referred to in paragraph 8 above, required the Respondent not to employ the Appellant in any of the specified jobs or areas. It did not, on its face, direct the Respondent to dismiss the Appellant. The same issue therefore appears to us to arise, namely whether, in such circumstances, the Appellant's complaint that she was unfairly dismissed, as opposed to the fact that she was dismissed, is not justiciable. Put another way, the only immunity which is given to the Respondent by reference to s19(2), is "by reason of anything done or not done by him or on his behalf in compliance with such a Direction", and the Respondent would need to establish that the entirety of what it did, which is said to amount to a complaint of unfair dismissal, was "in compliance with such a Direction".
- We conclude therefore that the Tribunal did not finish its job, in that it wrongly felt itself precluded from considering questions of fairness, when, in fact, it should have considered whether the Respondent, faced with the need to comply with the Direction and with the refusal of clearance, acted outside the range of reasonable responses of a reasonable employer and if so whether such act, being the action complained of, even if otherwise unreasonable, was itself for the purpose of safeguarding national security. On that limited basis this appeal must be allowed, and the case remitted for that purpose. Neither party dissents from the proposition, taking into account Sinclair Roche & Temperley v Heard [2004] IRLR 763, that the remission should be to the same Tribunal.
