With terrorism a growing concern for most of us nowadays, the people employed to guard against serious threats to public safety play an increasingly important role. But what can employers do if they have reason to believe that a member of their security staff poses a significant risk, but they cannot prove it?
Security checks
This issue was recently examined by the Employment Appeal Tribunal (EAT) in the case of B v BAA plc. The claimant was employed by BAA as a security guard at Heathrow Airport. All guards require counter-terrorist-check clearance from the Department of Transport (DoT) before they can be confirmed in their posts, although they are allowed to work under supervision pending that confirmation.
The DoT eventually told BAA that it was unable to grant B clearance, but it could not say why. This prevented BAA from employing B as a guard, and she was dismissed. However, having already clocked up more than a year’s service by then, she was able to claim unfair dismissal.
Legislative defence
Section 10 of the Employment Tribunals Act 1996 provides that an employment tribunal must dismiss an unfair dismissal complaint if it is shown the dismissal was for the purpose of safeguarding national security (although ‘national security’ is not defined).
Relying on this provision, the tribunal dismissed B’s complaint. On appeal to the EAT, however, B argued that an employer must have factual proof that national security interests are at stake before it can rely on section 10. BAA could not do this, of course, as the DoT was not in a position to reveal the requisite information.
Additionally, B contended that in any event, only Crown employers could rely on section 10, as only they could justify the underlying reasons for the decision.
Had these arguments succeeded, they would have caused severe problems – both for private employers, which would be completely excluded from the national security exemption, and for government employers, who would not want to disclose information they considered to be particularly sensitive.
Fortunately, the EAT decided that the provision applies to every employer, not just the Crown, and that the underlying reasons leading to the dismissal needn’t be proved.
However, the EAT controversially went on to say that the Human Rights Act requires any employer relying on section 10 to show that it applied the usual principles of fairness, such as considering whether redeploying the individual was a viable alternative to their dismissal.
Employers’ position
Where does this leave employers that are told by a reliable source that a member of staff poses an undefined threat? Can they really risk redeploying an individual when the risk is unquantifiable? Hopefully, most tribunals will decide that the fairness test is satisfied where an employer considers redeployment, but deems the risk too great.
This case is clearly of interest to employers operating ports, airports and nuclear installations, where the national security aspects of their business are self-evident. Arguably, however, any business operating in such environments – for example, train and bus companies, shops and even companies exporting goods – perform activities that impact upon national security insofar as they have access to strategically important parts of the infrastructure.
Five years ago, this may have appeared far-fetched. But after the 7 July London bombings, it now seems a feasible interpretation.
Key implications
The EAT has said that all employers can rely on section 10 of the Employment Tribunals Act 1996 to oust unfair dismissal claims brought by staff whose employment is terminated to safeguard national security.
Before dismissal, such employers must apply the ordinary principles of fairness, including considering redeployment.
As a result of the rise of terrorism, the concept of ‘national security’ may now have a broader application than had been previously understood.
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