JK v LM

A Tribunal considering a deposit application arising from refusal of national security clearance must make its own assessment of the discrimination claim. It may take account of the factual findings and specialist national security assessment of the Security Vetting Appeals Panel (SVAP), even if SVAP may not have applied the same proportionality test.

Under section 192 of the Equality Act 2010, the question is whether the refusal was for the purpose of safeguarding national security and proportionate for that purpose. The Tribunal may weigh the security concerns against the effect of refusal on the claimant. Changing explanations given to the claimant do not displace that objective inquiry.

The Claimant, a foreign national with indefinite leave to remain, was employed by a contractor supplying services to the Respondent, a public body. The contractor applied for security clearance that would have allowed the Claimant to undertake additional work and access further systems and personal data. The Respondent refused clearance. SVAP later recommended that the refusal be maintained on national security grounds.

The Claimant brought direct and indirect nationality or national origin discrimination claims. The Employment Tribunal refused the Respondent’s strike-out application but made a deposit order because the claims had little reasonable prospect of success. The Claimant appealed against the deposit order, and the Respondent cross-appealed against refusal to strike out. The central issues were whether the Tribunal had assessed the merits itself and whether it could rely on SVAP’s findings when assessing the prospects of the section 192 defence.

1. Disposition. The appeal and cross-appeal were dismissed.
2. Cross-appeal. Reading the Employment Tribunal’s concise reasons as a whole, the Judge had addressed the Respondent’s argument under section 192 of the Equality Act 2010. She considered whether SVAP had applied a proportionality assessment of the kind set out in Hardy & Hansons plc v Lax [2005] IRLR 726, and distinguished the threshold for strike-out from the lower threshold for a deposit order. The cross-appeal therefore rested on an incorrect reading of the reasons.
3. Independent assessment and SVAP evidence. The Tribunal did not outsource its assessment to SVAP. It formed its own view and considered how likely it was that a Tribunal would reach a different conclusion on proportionality. SVAP’s recommendation did not determine the discrimination claim, but its specialist findings on national security were relevant and could be given significant weight. A Tribunal may consider those findings even if SVAP may not have applied precisely the same legal test.
4. Application to the deposit order. Section 192 requires the act to be done for the purpose of safeguarding national security and to be proportionate for that purpose. The Judge was entitled to weigh the national security concerns against the limited effect of refusal: the Claimant remained employed and could continue work outside areas requiring clearance. The changing explanations given to him did not alter the objective question whether refusal was justified on national security grounds. On those facts, the Judge could find little reasonable prospect that a Tribunal would reject the proportionality defence, while declining to find that the claim had no reasonable prospect of success.

1. Employment Appeal Tribunal — In JK v LM [2026] EAT 144 , the Claimant’s appeal and the Respondent’s cross-appeal were dismissed.
2. Employment Tribunal — Employment Judge Brown refused the Respondent’s strike-out application and made a deposit order. No citation for that decision is stated in the judgment.