Background
JK, a foreign-state national with indefinite leave to remain in the United Kingdom, was employed by a contractor that supplied his services to LM, a public body. LM refused to grant him security clearance that would have permitted wider systems access and different work. JK remained employed and continued providing services to LM, but could not undertake work requiring that clearance.
JK alleged direct and indirect discrimination based on nationality or national origin. After an internal appeal failed, the independent Security Vetting Appeals Panel reviewed the matter afresh and recommended maintaining the refusal on national-security grounds. The Employment Tribunal declined to strike out JK’s claims as having no reasonable prospect of success, but ordered a deposit because they had little reasonable prospect of success. JK appealed the deposit order, while LM cross-appealed the refusal to strike out.
The Court’s Holding
The Employment Appeal Tribunal dismissed LM’s cross-appeal. Reading the Employment Tribunal’s concise reasons as a whole, it had considered LM’s defence under section 192 of the Equality Act 2010, including whether refusing clearance was a proportionate measure for safeguarding national security. It was therefore wrong to characterize the Tribunal as having failed to address that defence.
The EAT also dismissed JK’s appeal. The Employment Tribunal had not outsourced its assessment to the Security Vetting Appeals Panel: it recognized that the eventual merits tribunal must reach its own conclusion and that the panel might not have applied precisely the same discrimination and proportionality tests. Nevertheless, the Tribunal was entitled to give substantial weight to the specialist panel’s detailed factual findings about national-security risks.
Given the weight of those national-security considerations, the binary choice whether to grant clearance, and the comparatively limited effect on JK—who retained his employment and was restricted only from clearance-dependent work—the Tribunal permissibly concluded that the claims had little reasonable prospect of success. That conclusion was consistent with its separate finding that the higher threshold for striking out the claims had not been met.
Key Takeaways
- A specialist security-vetting panel’s recommendation does not determine an Equality Act claim or create an automatic basis for striking it out.
- An Employment Tribunal may nevertheless give substantial weight to the panel’s factual findings and national-security assessment when evaluating proportionality under section 192.
- A claim may have enough prospect of success to survive strike out while still having sufficiently weak prospects to justify a deposit order.
Why It Matters
The decision clarifies how employment tribunals may use specialist national-security findings without surrendering their responsibility to decide discrimination claims independently. Even where the specialist body may have applied a different proportionality framework, its factual findings can remain highly relevant to the merits.
It also illustrates the meaningful distinction between the thresholds for strike out and deposit orders. National-security discrimination claims should not be summarily terminated merely because an expert panel upheld the underlying decision, but strong security evidence and limited adverse consequences may justify requiring a deposit before the claim proceeds.