UNFAIR DISMISSAL

B v BAA plc

EAT: Burton J (President), Mr M Clancy and Mrs M V McArthur: 19 May 2005

The claimant was suspended from her employment as a security guard at an airport terminal operated by the respondent employer following her failure to obtain counter-terrorist check clearance from the Department for Transport, a contractual requirement for the post. No reason was given for the refusal and when the claimant appealed to the department, requesting to be told why clearance had been refused, she was told that no explanation would be given. The employer rejected possible alternative employment on the ground that the department had taken the view that the claimant was unreliable, and the claimant was dismissed. An employment tribunal dismissed her claim of unfair dismissal on the ground that the employer had established that the reason for the dismissal was the refusal of security clearance and that that was for the purpose of safeguarding national security within the meaning of section 10(1) of the Employment Tribunals Act 1996.

The claimant appealed.

The Employment Appeal Tribunal held:
Section 10(1) of the Employment Tribunals Act 1996 was not restricted to Crown employment but could arise in the context of any employment, and the necessary fact-finding exercise under the subsection was to prove what the reason of the employer was for a dismissal and whether the dismissal for such reason was "for the purpose of", not "had the effect of", safeguarding national security and not what the underlying facts were. However, notwithstanding the context of national security, section 3 of the Human Rights Act 1998 required that section 10(1) should not be construed so as to exclude the impact of section 98(4) of the Employment Rights Act 1996, so that it was still necessary for the tribunal to determine whether the employer had acted reasonably in dismissing. Accordingly, an employer seeking to rely on section 10(1) had to show not only that the removal of the claimant from his employment was required for the purpose of national security but that the steps taken by way of dismissal were also required, taking into account issues such as whether it was within the range of reasonable responses to dismiss rather than to redeploy. The employment tribunal had erred in failing to consider whether the employer acted outside the band of reasonable responses and if so whether such act was itself for the purpose of safeguarding national security, and the matter would be remitted for that purpose.

The appeal was allowed.

Appearances: Dinah Rose and Ben Jaffey (Liberty) for the claimant; Jonathan Swift (Lewis Silkin) for the employers.