Storey v Government Communication Headquarters (GCHQ) (National Security)

For direct disability discrimination, a tribunal may distinguish between disability itself and security risks arising from information connected with that disability. The distinction is lawful where the evidence supports a finding that the employer acted because of the risks, rather than because of the disability.

The same approach applies to religion or belief. Beliefs may be distinct from workplace risks arising from their anticipated effect on behaviour or judgment. A prohibited characteristic need not be the sole reason for treatment, but it must be a significant reason. Where the tribunal finds that it played no part in the employer's reasons, direct discrimination is not established.

The claimant applied for a sensitive GCHQ post requiring Developed Vetting clearance. GCHQ ultimately refused clearance after medical, psychological and security assessments. He alleged direct disability discrimination, disability-related discrimination, and direct religion or belief discrimination.

An Employment Tribunal unanimously dismissed all claims in reserved open and closed reasons sent on 8 October 2013. It found that the adverse decisions resulted from national-security concerns and risks, not from the claimant's past disability or religious beliefs themselves.

Following a limited appeal by the Special Advocate concerning the closed reasons, the Employment Appeal Tribunal considered whether the Tribunal had wrongly separated the protected characteristics from the security concerns, and whether it had overlooked the possibility of more than one significant reason for treatment.

1. Appeal dismissed. The Employment Tribunal applied the correct legal approach and reached conclusions open to it on the evidence.

2. Under Disability Discrimination Act 1995, direct discrimination requires the disability itself to be a reason for the less favourable treatment. A reason related to disability is not necessarily the same thing. The Tribunal permissibly found that the claimant's past disability was distinct from the future national-security risks identified in the Developed Vetting process.

3. The evidence supported the finding that GCHQ was concerned with security, protection of sensitive assets and public safety. The security concerns were partly related to the claimant's mental-health history, but the Tribunal was entitled to find that the disability itself was not a reason for the refusal of employment or clearance.

4. The Tribunal had also adequately dealt with the GCHQ policy concerning applicants with a history of psychotic illness. It found no automatic rejection or blanket ban, and no evidence that the policy caused less favourable consideration of this claimant's application.

5. The same distinction was permissible for the religion or belief claim. The claimant's Christian beliefs were not themselves a concern. The Tribunal could find that the relevant concern was the possible effect of those beliefs on behaviour and judgment in a highly sensitive workplace, creating a separate security risk.

6. A discriminatory reason need not be the only reason for treatment if it is significant. However, the Tribunal did not find that disability or religious belief formed any part of GCHQ's reasons. It instead found several security factors, one related to mental health. There was therefore no error in its treatment of multiple reasons.

• Employment Appeal Tribunal: dismissed the Special Advocate's limited appeal and upheld the Employment Tribunal's dismissal of the direct disability and religion or belief discrimination claims.
• Employment Tribunal: by reserved open and closed reasons sent on 8 October 2013, unanimously dismissed all discrimination claims.