Kiani v Secretary of State for the Home Department  EWCA Civ 776
The Court of Appeal have held that the Employment Tribunal can withhold disclosure, prevent a party from giving instructions and limit the gist of the case against him, in the “closed material” procedures, if national security is of a greater concern. The Tribunal should make a balancing act between a party’s rights under EU Law or the European Convention on Human Rights (“the ECHR”) and the National Security concerns. This affirmed the decision in Tariq v Home Office  UKSC 35.
Mr Kiani was an immigration officer, who was suspended in March 2008, had his security clearance withdrawn in June 2008 and was eventually dismissed in July 2010. No reasons were given for these decisions.
Mr Kiani brought a claim against his employers in race discrimination and unfair dismissal. The grounds given by the Respondent were that his security clearance was withdrawn for reasons of national security and he was dismissed because he did not have security clearance.
At a preliminary hearing the Tribunal gave an order, under Schedule 1 (s.54) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, that (i) Mr Kiani and his representatives should be excluded from the secret parts of the interlocutory hearings which would be regarded as "closed"; (ii) secret material should not be disclosed to Mr Kiani; and (iii) the Attorney General should be informed that it might be appropriate to appoint a special advocate.
A special advocate was appointed, however he was prohibited from meeting with Mr Kiani and taking instructions in regards to any secret material disclosed to him.
Upon challenging the orders made, the Tribunal held they were consistent with Article 6 of the ECHR and that Tariq applied, whereby a tribunal can exclude material on a national security basis but must perform a “balancing act”. Mr Kiani appealed to the Employment Appeals Tribunal, who dismissed his appeal but granted permission to appeal to the Court of Appeal.
Mr Kiani’s grounds of appeal were that the EAT failed to apply the principles in ZZ v Secretary of State for the Home Department (C-300/11) that where a person is excluded from material he is entitled to be informed of the essence of the grounds against him and that there was insufficient material to justify the Tribunal had conducted a balancing act as per Tariq.
The Master of the Rolls, Lord Dyson, rejected Mr Kiani’s arguments that a person must be provided with a minimum amount of relevant information and held at para 39 that the Tribunal had conducted an exercise mirroring that undertaken in ZZ (CJEU) and that the court has to first decide that the national security concerns are valid and that a balancing exercise with Article 6 of the ECHR is undertaken.
In relation to Mr Kiani’s grounds that the Tribunal did not undertake the balancing act as per Tariq, Lord Dyson scrutinised Employment Judge Snelson’s judgment at paras 44 to 52 and concluded that he had undertaken the balancing act required.
Implications of the Judgment
Although it was already founded that these “closed material” procedures could apply in the Employment Tribunal, this case exemplifies the true extent of these procedures, in that a party can be refused even the gist of the arguments against him.
In our opinion the Court of Appeal have been correct in their approach to the law, however we believe that this procedure must evolve to somehow allow a solution to allow both maintenance of national security and also the right to a fair trial.
A link to the Kiani judgment can be found here Kiani v Secretary of State for the Home Department
A link to the Tariq judgement can be found here Tariq v Home Office
A link to the ZZ(CJEU) judgment can be found here ZZ v Secretary of State for the Home Department