Employment Law Snapshot

Welcome

Welcome to Issue 6 of my Employment Law Snapshot.

This week’s ramblings are all about espionage, spying and security risks. That’s because this week’s case involves a failed job application for GCHQ and I also happened to go to see the new James Bond film a couple of days ago.

The current Mrs Tibble and I went with a few friends and we all decided to go to the cinema in James Bond themed fancy dress. Rather than go along as Sean Connery or Daniel (swoon) Craig, I controversially decided to go as Roger Moore – it certainly raised a few eyebrows…

Think about it…

There you go.

On with the law.

The legal stuff

This week’s case is called Storey v GCHQ.

Mr Storey applied for a job at GCHQ which required the highest level of security clearance.  After an extensive recruitment process which lasted 18 months and included enquiries into Mr Storey’s health and security vetting, his application was eventually rejected.

Mr Storey brought a claim in the Employment Tribunal for unlawful discrimination on grounds of disability and religion.

During the Employment Tribunal proceedings, it emerged that the recruitment process had identified that Mr Storey had experienced psychotic episodes in the past and therefore, GCHQ had concerns that there was risk that they could happen again, which could result in behaviour which would interfere with his work and pose potential serious security risks.

Mr Storey argued that because GCHQ’s careers website said that it was unlikely to consider applicants who have suffered from bipolar disorder or psychotic illness meant that there was a discriminatory ban on people with certain disabilities working for GCHQ. Mr Storey’s other main allegation was (in simple terms) that he was unsuccessful with getting security clearance on the grounds of his past disability, which was unlawful.

In addition, Mr Storey alleged that he was unsuccessful with his application on the grounds of his religious beliefs. During the hearing, the Tribunal referred to a potential personal conflict of interest between his religious beliefs and national security because Mr Storey had said that if he was required to choose between his loyalty to his country and his loyalty to God, he would choose his loyalty to God, whatever the outcome.

Ultimately, Mr Storey lost his claim in the Employment Tribunal. This was because the Employment Tribunal decided that his adverse treatment was not on grounds of his disability or religious beliefs – it was for reasons of security and the potential risks to national security that he posed. As far as the disability discrimination claim was concerned, the general gist of the judgement was that the reason for the refusal of his application was the concern about the security risk and not the disability itself. As far as the religious discrimination claim was concerned, the Tribunal concluded that any job applicant would have been treated as Mr Storey was, in the same circumstances, because of the potential national security risks that were identified.

Mr Storey appealed to the Employment Appeal tribunal (EAT). Interestingly, because of the national security elements involved with the appeal, the entire hearing was conducted in private and Mr Storey was not permitted to be present. He was represented by a Special Advocate who appeared on his behalf.

The main argument at the EAT was that the original Tribunal’s decision was flawed because even though Mr Storey’s disability and his religious beliefs were not the only reason for his unsuccessful application, they were part of the reason and therefore must amount to discrimination.

In broad terms, the EAT concluded that Employment Tribunal’s reasoning was not flawed. The EAT decided that the Tribunal was entitled to draw a distinction between the security concerns and Mr Storey’s past disability and religious beliefs.  As long as the Tribunal was satisfied that there was evidence to support GCHQ’s position that the past disability and religious beliefs did not form part of the reason to say no to Mr Storey (which the EAT concluded that there was) then the EAT was satisfied that the original Tribunal had not made an error of law.

As such, Mr Storey failed in his appeal to the EAT, although it has been reported that he is considering an appeal against the EAT’s judgement, so watch this space.

And Finally…

At the moment, some of you might be enjoying (or enduring) the current series of The Apprentice. Well, Russian television has come up with its own version with a particular ‘Russian’ spin on the format.

The programme is called ‘Zavod’. According to the BBC, the candidates are made up of graduates who are put through a number of challenges to win a once in a lifetime prize… to become a “remote control-panel operator for ammonia production” at the Azot fertiliser plant in the Urals!

You couldn’t make this stuff up….

Until next time comrades.

Darren