Home Office v Mohammed Shah

In national-security employment proceedings, a tribunal considering whether to require a gist must conduct a fact-sensitive balance between the claimant’s ability to pursue the claim and the risk to national security. There is neither an absolute right to a gist nor an automatic rule that the state’s assertion of security risk prevails.

The tribunal must examine a security claim critically, but it must accord substantial deference to the Executive. It cannot substitute its own assessment of national-security risk and must recognise its limited capacity to assess such risk. It must also take account of the capacity of Special Advocates to test an alleged discriminator’s case without instructions on the closed facts. A party resisting gisting should ordinarily support its case by relevant evidence or documents, including material from earlier related security proceedings where appropriate.

The claimant, an Immigration Officer, lost his security clearance and was dismissed. He brought a claim of direct sex discrimination, alleging that the clearance decisions were influenced by stereotypical assumptions connected with his relationship with family members. The Home Office denied discrimination but relied on undisclosed national-security reasons.

The Employment Tribunal made a closed-material order under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, rule 94. Special Advocates were appointed. At a closed preliminary hearing, the tribunal ordered the Home Office to provide the claimant with a proposed gist of its defence. The Home Office appealed that gisting order.

The central issue was the correct legal approach to an application for a gist in national-security employment proceedings.

1. Appeal allowed. The Employment Tribunal erred in ordering a gist. Further written submissions were invited on whether the gist application should be remitted for fresh consideration or determined by the Employment Appeal Tribunal.

2. The governing approach, derived principally from Tariq v Home Office [2011] UKSC 35 and Kiani v Secretary of State for the Home Department [2015] EWCA Civ 776, is a context-specific balancing exercise. Article 6 does not require a gist in every national-security discrimination case. Nor does the state prevail merely by asserting that a proposed gist would create a security risk.

3. The tribunal must critically examine the state’s claim, but national security is primarily an Executive assessment. An Employment Tribunal is less well equipped than a specialist body to assess security risk. It must give substantial weight and deference to the Executive’s assessment and confine its scrutiny to a Wednesbury-type approach. The tribunal’s formulation suggested that it would itself evaluate the probability and degree of harm. Its closed reasoning showed that it had overstepped that limit.

4. The tribunal also failed adequately to consider the protection afforded by the Special Advocate procedure, including the ability to test whether the decision-making process was infected by discrimination without the claimant’s instructions on the closed material.

5. A respondent resisting gisting should in principle support its case by a statement from a relevant person and/or documentary material, rather than counsel’s submissions alone. Practical limits on detailed evidence of security risk must, however, be recognised. Earlier rule 94 and security-vetting decisions, and material referred to in them, may properly be relied upon subject to submissions about their weight. The tribunal erred by proceeding on the emphatic basis that there was no evidence, without addressing material that had been placed before it.

6. The tribunal’s failure expressly to address rule 94(10) did not independently determine the appeal. Its conclusion that disclosure would pose no security risk would in any event have meant that the rule did not alter its reasoning.

• Employment Appeal Tribunal: allowed the Home Office’s appeal against the gisting order: [2025] EAT 75.
• Employment Tribunal, London Central: at a closed preliminary hearing in July 2024, ordered the Home Office to provide the claimant with a proposed gist of its defence. The order was recorded in writing on 22 October 2024.