Kiani v Secretary of State for the Home Department

In national-security employment litigation, there is no universal minimum requirement that the claimant receive a gist of the case against him. The tribunal must assess the particular circumstances, inspect the closed material, hear the special advocate, and balance the claimant’s ability to participate against the State’s national-security interests. Tariq remained applicable to discrimination and unfair-dismissal proceedings despite the later decision in ZZ, which arose in the materially different context of restrictions on an EU citizen’s free movement and residence. A closed procedure may therefore be permissible without further disclosure. A claim may be struck out where a fair trial is impossible, but that is a permissive power rather than a general rule. Questions of disclosure and admissibility must remain under review throughout the proceedings.

The claimant, a British Pakistani Muslim immigration officer, was suspended, had his security clearance withdrawn and was dismissed by the Home Office without reasons. He brought claims alleging race and religious discrimination and unfair dismissal. The Employment Tribunal ordered proceedings under rule 54 of the Employment Tribunals Rules of Procedure 2004 to proceed partly in closed session, with a special advocate. The claimant sought further disclosure, further gisting and permission for the special advocate to take instructions after viewing secret material.

The Employment Tribunal refused the application, considering the closed procedure appropriate and relying on Tariq v Home Office. The central issue on appeal was whether ZZ (France) v Secretary of State for the Home Department required disclosure of at least the essence of the case in every case engaging EU law.

1. Appeal dismissed. The Employment Tribunal was entitled to refuse further disclosure and to retain the rule 54 closed-material procedure.
2. The Supreme Court’s principles in Tariq v Home Office remained binding. They did not impose an absolute minimum content for disclosure in cases arising in the same context. The tribunal had to inspect the material, hear the special advocate, assess the particular facts and balance the significance of disclosure to the claimant against the national-security interest and the significance of the material to the respondent’s defence.
3. Article 47 of the Charter of Fundamental Rights was applicable, but the decision in ZZ concerned restrictions on an EU citizen’s rights of free movement and residence. Its requirement that the essence of the grounds be disclosed was context-specific and did not displace Tariq in employment discrimination and unfair-dismissal proceedings.
4. The Employment Tribunal had considered the closed material and the particular application for disclosure. Its reasons were sparse because much of the relevant material was secret, but they sufficiently demonstrated that it had undertaken the required balancing exercise.
5. Carnduff v Rock established only that a claim may be struck out where a fair trial cannot be held because necessary evidence cannot lawfully be tendered. It did not create a general rule that no trial is preferable to an imperfect trial. The tribunal should ordinarily avoid striking out on its own initiative unless the claimant asks for that course.
6. There was no legal requirement that every question of admissibility or disclosure be determined before the substantive hearing. Such matters should be resolved in advance where practicable, but must remain under review. A tribunal must recuse itself if it becomes unable to disregard inadmissible material.
7. Permission to appeal to the Court of Appeal was granted after consideration of Bank Mellat v HM Treasury, although that decision did not alter the reasoning.

• Employment Tribunal: Employment Judge Snelson refused the claimant’s application for further disclosure and variation or revocation of the rule 54 order, holding the closed procedure compatible with Article 6 and appropriate in the circumstances.
• Employment Appeal Tribunal: The appeal was dismissed. Permission to appeal to the Court of Appeal was granted.