Mr N Sheikh v FCDO Services: 3308894/2022
JUDGMENT
On hearing the Claimant in person and Ms Alice Meredith, counsel, on behalf of the Respondent, the Tribunal determines that:(1) The Claimant’s complaint of unfair dismissal is struck out.(2) Accordingly, the proceedings as a whole are at an end. EMPLOYMENT TRIBUNALS BETWEEN Claimant and Respondent Mr N Sheikh FCDO Services CORRECTED1 REASONS FOR THE JUDGMENT Introduction[1]At a hearing held in private on 30 July 2024 I struck out the Claimant’s complaint of unfair dismissal and the proceedings as a whole were thereby dismissed. A judgment embodying that outcome was sent to the parties the following day.[2]These reasons are given in writing pursuant to written requests on behalf of both parties. There was an initial delay owing to uncertainty as to whether written reasons were actually being requested. Neither party has signalled any interest in appealing against my judgment. The Claimant stated that he wished for written reasons in order to achieve ‘closure’. At all events, it was eventually apparent that both parties were determined to have written reasons despite my having given a clear oral decision on the day and this case raising no point of general principle. The hard-pressed resources of the Employment Tribunal system may be better served if and when the rules of procedure are modified to restrict requests for written reasons to cases in which they are genuinely needed. Since it became evident that the reasons would need to be produced, I have had them in mind. I have not, however, made this case a priority. Rather, I have given priority to cases in which parties are awaiting outcomes or points of controversy have needed elucidation in written reasons. The applicable law[3]The scheme of protection against unfair dismissal is simple. By the Employment Rights Act 1996 (‘ERA 1996’), s98 two questions are posed. First, what was the true reason for dismissal? It is for the Respondent to prove the reason and to show that it fell within one of the categories of potentially fair reasons. Those categories include ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee 1 Corrected on 16 January 2025 by EJ Snelson pursuant to the Employment Tribunals Rules of Procedure 2024, rule 67(1). Corrections are to paragraphs 5, 6, 10 and 11 only. held’ (s98(1)(b)). Where the Respondent establishes a potentially fair reason, the question whether the dismissal was fair or unfair ‘depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case’ (s98(4)). Here there is no burden either way but the law allows a margin of discretion to the employer: the reasonableness balance acknowledges that in many cases an employer will face a range of reasonable options and the Tribunal’s assessment of fairness is limited by the principle that it must not stigmatise as unfair a decision which falls within that range (even if it, in the shoes of the employer, would have acted otherwise).[4]By the Employment Tribunals Act 1996 (‘ETA 1996’), s10, it is provided that: ‘If on a complaint [of unfair dismissal] it is shown that the action complained of was taken for the purpose of safeguarding national security, the employment tribunal shall dismiss the complaint.’[5]In B v BAA plc [2005] ICR 1530, another case of an employee dismissed on the ground of withdrawal of security clearance, the Employment Appeal Tribunal (‘EAT’) (Burton J and members) considered the interrelationship between ERA 1996, s84 and ETA 1996, s10. The EAT held that the Employment Tribunal (‘ET’) must enquire into whether the dismissal was ‘for the purpose of (not had the effect of) safeguarding national security’. It was not the function of the ET to enquire into the underlying facts behind the withdrawal of the clearance. On the other hand, the Claimant’s Article 6 ECHR right to a fair trial requires the ET to apply ERA 1996, s98 fully, albeit through the ETA 1996, s10 lens. Given the facts found (and not found) by the ET, the EAT remitted the matter to the ET to ‘finish its job’. In particular, because the ET had declined to consider ‘fairness’, it had failed to address a key question, namely whether redeployment would have been a practicable alternative to dismissal.[6]I agree with Ms Meredith, counsel for the Respondent, that the effect of the relevant provisions and the guidance in B v BAA plc is that in any case of this kind the ET must apply the reasonableness test under ERA 1996, s98(4), but only in relation to action taken after the withdrawal of the Claimant’s security clearance. Even more fundamentally, I cannot have regard to the rights and wrongs of the vetting decisions themselves.[7]By the Employment Tribunals Rules of Procedure 2013, rule 37(1)(a), the ET has power to strike out a claim or part of a claim or a response on the ground (among others) that it has no reasonable prospect of success. The case-law stresses the need for striking-out powers to be exercised with caution and restraint. That said, the higher courts have also pointed out that, in a proper case, a strikingout judgment may be the only proper course to take. Background[8]The facts can be summarised very briefly.(1) The Claimant’s employment by the Respondent began in 2007. His terms provided that all appointments were subject to security clearances as required.(2) The Respondent’s Corporate Security Policy in force from 26 June 2020 provided that all permanent employees were required to hold and maintain either SC or DV clearance.(3) On 10 January 2022 the Foreign, Commonwealth and Development Office (‘FCDO’) removed the Claimant’s SC and DV clearances.(4) On 3 February 2022, the Claimant appealed against those decisions of FCDO.(5) On 25 April 2022 the Claimant was notified by the FCDO Permanent Under Secretary that the decision to withdraw his clearances had been upheld.(6) On 3 May 2022 the Claimant was invited to a formal meeting to be held on 10 May 2022 to consider whether he should be dismissed on the ground that withdrawal of his clearances had compromised his ability to work for the Respondent.(7) On 5 May 2022, an HR officer of the Respondent confirmed that no roles were available within the Respondent for persons without SC or DV clearance.(8) The meeting scheduled for 10 May 2022 duly went ahead and the Claimant was dismissed on that date.(9) A letter was sent to the Claimant on 12 May 2022 confirming the decision to dismiss him and advising him of his right to appeal.(10) The Claimant did not exercise that right to appeal. He did, however, issue a post-employment grievance on 27 June 2022, which was considered and dismissed in a letter of 4 August 2022.(11) In the meantime, the Claimant had, on 21 June 2022, appealed to the Security Vetting Appeals Panel (‘SVAP’) against the withdrawal of his security clearances.(12) On 22 September 2023 SVAP issued its decision on his appeal. It concluded that the decisions relating to his clearances had been reasonable but passed some critical comment about communication. Analysis and conclusions[9]The Claimant presented his case with dignity and moderation. Once the legal framework had been explained to him, it became clear that he raised no challenge to the Respondent’s application capable of bearing upon my decision. He did not dispute the fact that there was no apparently arguable ground for questioning the fairness of the dismissal as a matter of substance. In particular, he accepted that the Respondent’s rules (the appropriateness of which he did not question) require all employees to hold SC or DV clearance and that he held neither. No redeployment option arose.[10]Nor did the Claimant challenge the fairness of the process which culminated in his dismissal. He had been given adequate notice of the meeting of 10 May 2022 and had been made fully aware of what the Respondent was contemplating and why. He had been given ample opportunity at that meeting to make such representations as he saw fit. He had been advised of his right to appeal.[11]As the hearing progressed, it became evident that the Claimant’s real sense of grievance was about the Respondent’s management prior to the events which had resulted in his clearances being withdrawn. He had loved his job and felt let down in not being appropriately led and guided. He believed that, better managed, he would not have made the errors which cost him his career. But rightly, he did not suggest that I should, or even could, enquire into the background to the vetting decisions (to repeat, decisions of the FCDO, not the Respondent). I have considerable sympathy for the Claimant. I proceed on the footing that he was a loyal and valued employee of the Respondents over many years. But I find that nothing which he has raised before me provides an answer to Ms Meredith’s application.[12]It is self-evident that the dismissal was because the Claimant, having ceased to hold the necessary clearance, no longer qualified to be an employee in the Respondent workforce. It is not in dispute that the requirement for security clearances applies for the purpose of safeguarding national security. The dismissal was to give effect to that requirement and was, accordingly, itself an act carried out for the purpose of safeguarding national security. In the circumstances, it is clear that ETA, s10 is engaged.[13]In line with B v BAA plc I must consider the application of ERA 1996, s98. In my judgment, it is plain that, at a final hearing, there could be only one outcome to the Claimant’s unfair dismissal claim. In this respect, the Claimant’s case differed from B v BAA plc. There, as the EAT pointed out, there was, or at least appear to be, an argument to be had on the question of reasonableness. That was because, despite the fact of the employee’s clearance having been withdrawn and ETA, s10 being engaged, there was, or might be, a real issue as to whether it had been open to the employer to redeploy the employee. But our case is different. Here no question of redeployment arises. Nor, as the Claimant fairly accepted, does any question of procedural unfairness.[14]It follows, in my judgment, that it is inevitable, or as close to inevitable as makes no difference, that, were this matter to proceed to a contested hearing at trial, the Respondent would be held to have dismissed the Claimant fairly. Its substantive decision-making and its procedural handling of the case fell fully within the range of reasonable options open to it in the circumstances. (Indeed, it would be very hard to argue against the proposition that any outcome other than dismissal would have been outside that range.) Accordingly, I am in no doubt that the unfair dismissal claim has no reasonable prospect of success and that the only just an proportionate measure to take is to strike it out.