Safeguarding National Security

There is sometimes a fine line to be drawn between protecting the majority and the rights of individuals. Recent acts of terrorism have probably altered where most of us think that line should be drawn. However, where is this relevant in employment law?

Employment Tribunals are required to dismiss a claim of unfair dismissal if the dismissal occurred because the employer was safeguarding national security.

This was something that the Employment Appeal Tribunal had to consider in the case of B v BAA Plc.

Ms B worked as a security guard for BAA Plc at one of its airport terminals. Under the Aviation Security Act of 1982 she had to have counter terrorist check clearance.

The Department for Transport refused to grant Ms B counter terrorist check clearance on the basis that there were concerns about her reliability. No other reasons were given and the Department refused to give Ms B any further details.

Ms B asked BAA Plc to move her to a job that did not require security clearance; BAA refused and dismissed her. Ms B made a complaint of unfair dismissal to an Employment Tribunal.

It is possible to see this case from both sides.

Would I be happy to use an airport which employed people in any capacity who had been refused counter terrorism check clearance? No.

If I was Ms B and I lost my job because some officials I didn’t know had decided for unknown reasons that they had concerns about my reliability, would I feel badly treated? Yes.

The Employment Tribunal hearing Ms B’s claim decided to reject it. Because BAA had taken the decision to dismiss her for the purpose of protecting national security, the Tribunal decided that they did not have to consider whether BAA should have considered moving her to a job that did not require clearance.

Ms B appealed to the Employment Appeal Tribunal arguing that her human rights had been breached.

She claimed that to sack her fairly, in the interests of national security, the employer would have to produce the evidence to show that she was a threat to national security. Obviously BAA couldn’t do that because the Department for Transport would not provide it.

The Employment Appeal Tribunal rejected this argument. In the Tribunal’s view BAA did not have to analyse the Department for Transport’s reason for refusing counter terrorism check clearance. However, the Tribunal went on to say that an employer in such a situation is required to show that it acted reasonably in dismissing the employee as opposed to taking some other action. This, the Tribunal said, would satisfy the Human Rights Act. BAA had an obligation to consider moving Ms B to another job when she could no longer do her existing job due to her failure to get clearance. The case was sent back to the Employment Tribunal for it to consider this issue.

Whether this is a good decision or not is probably a judgement call that we all have to make for ourselves.