Refusing to employ Chinese nationals in sensitive national security jobs is not discrimination, a tribunal has ruled.
The decision also applies to potential job candidates from Russia, North Korea, and Iran.
The new ruling comes after a Chinese scientist sued a British AI company with links to defence organisations when she failed to clinch a role at the firm, despite encouraging emails from the company’s founder.
Tianlin Xu applied for a role paying up to £220,000 lead AI role at Binary AI Ltd but the software company’s sole director Dr James Patrick-Evans eventually rejected her in favour of another candidate.
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Miss Xu tried to sue Binary AI Ltd on grounds of race discrimination, claiming her rejection was “racial stigma” and “stereotyping” but the tribunal dismissed her claims.
Dr Patrick-Evans’ start-up uses AI to identify flaws in software used by Western governments to prevent state-backed hackers from the likes of China and Russia targeting them. He was “strongly advised against hiring a Chinese national” by top defence officials that he worked with, the tribunal heard.
Chinese people – such as Miss Xu – would not get security clearance from governments in order to carry out the work, it was said.
But the tribunal found that hacking groups from countries including China had tried to obtain a “backdoor” or malicious remote access into software that forms the backbone of UK infrastructure such as 5G telecoms, NHS health networks, power plant controllers, and water infrastructure systems. “It is therefore imperative that the security of the software that drives these systems is verified, controlled and secured. Dr Patrick-Evans provided in his witness statement and in the bundle copious evidence of these types of attacks.”
Contract with MoD agency
In September 2023, the respondent had a contract with the Defence Science and Technology Laboratory (DSTL), an agency of the Ministry of Defence, to develop AI that could identify hidden backdoors inside software. The contract required employees to pass security checks.
In the middle of September 2023, Dr Patrick-Evans advertised for a job role for the position of lead AI researcher. The role was critical to Binary AI as a start-up.
Miss Xu applied for the role but was ultimately rejected in favour of a British national who had more experience.
Although Miss Xu’s background and skill set were not relevant to the position, Dr Patrick-Evans was impressed by her background in other areas of mathematics and machine learning.
In her evidence in cross-examination, Miss Xu accepted that the ultimately successful candidate was at least as good a candidate as her. She had also had higher salary expectations than the successful candidate and was not a British national. This meant that Binary AI would have had to arrange a visa, which would have been costly and time-consuming.
At this time, Dr Patrick-Evans was informed by defence officials that a Chinese national could not work in this area due to national security constraints.
Miss Xu, the tribunal heard, conceded that she would not even have applied for the lead AI role if she had known at the time of applying that security clearance would have been a requirement.
Background check
Dr Patrick-Evans was still interested in Miss Xu’s candidacy, as the lead candidate had not accepted the role as yet. In October 2023 he wrote to Miss Xu: “We consider you an extremely strong candidate for the position and would be happy to pay for your visa. Going forward, I would need to submit your details and perform a quick background check.”
Later that month, however, the leading candidate signed his contract and Dr Patrick-Evans wrote to Miss Xu: “I think you’re highly intelligent and a brilliant candidate for the role. I still haven’t had a response from the background check, but I assume it will be fine. However, disappointingly I’ve come to the decision not to proceed with your application on the sole basis of your nationality.
“As a company, we work closely in sensitive areas with Western governments and wish to continue to do so. We’re simply not big enough of a company to ensure the separation and security controls needed to hire someone of your nationality at this stage. I apologise for not knowing the full extent of this situation ahead of time. Depending on our growth path, I’d love to reach out to you in a few years time.”
Context
The employment judge, Richard Baty, commented on this: “If you read the words ‘I’ve come to the decision not to proceed with your application on the sole basis of your nationality’ in complete isolation, it looks like an admission of direct race discrimination on the basis of nationality.” But the wider context of the rejection indicated a completely different picture, he said.
The judge ruled that the job application for the role of AI lead was not discontinued because of her Chinese nationality, but because there was a better candidate who then accepted that role.
He also made a distinction between ethnic origin and national origin, saying that people with Russian, Iranian, Chinese and North Korean ethnicity would not necessarily be barred from such work; it only applied to those who held nationality for these countries.
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