EU law compatibility of non-disclosure on national security grounds in employment law context considered


Re: Kiani v SSHD [2015] EWCA Civ 776

The appellant was an immigration officer who was suspended and had his security clearance withdrawn, before being dismissed from employment. No reasons were given for these decisions. He lodged a complaint with the Employment Tribunal alleging discrimination on grounds of race and religion and unfair dismissal. The respondent relied on national security grounds for its decisions.

Interim orders were issued under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861, Sch 1 Employment Tribunals Rules of Procedure, r 54, allowing for closed hearings that excluded the claimant. A Special Advocate was appointed to represent him. The appellant argued that because his case was within the scope of EU law, the case of ZZ (France) v Secretary of the State for the Home Department (C-300/11), [2013] QB 1136 had to apply. He argued that this decision required a minimum gist of the case against him to be disclosed openly, and that because this had not occurred, his appeal should be allowed.

The Court dismissed the appeal. While it accepted that his case was within the scope of EU law, the Court did not think that CFR, art 47, differed to the protection afforded by ECHR, art 6, where an issue of procedural fairness arose. The decision in ZZ which required the disclosure of the essence of the grounds against an individual was confined to the specific context of the Directive that was interpreted in that case.

The Court also rejected the two other grounds of appeal. It found that the judge had adequately considered the closed material and that the balance exercise had been properly completed. It also held that the Employment Tribunal made no error in not assessing whether a fair trial was possible given the operation of the closed material procedure. The judge was not expected to indicate the appellant’s chances of success at that stage.

The Court also refused the request to make a preliminary reference to the CJEU, expressing the opinion that the law was clear on this point.

Hugh Southey QC was involved in this case.