Employment tribunal can hear secret evidence

An employment tribunal can hear secret evidence to ensure the cousin of a convicted terrorist has a fair hearing, the Court of Appeal has held.
Home Office v Tariq [2010] EWCA Civ 462, concerned a race and religious discrimination claim brought by Kashif Tariq, an immigration officer who was suspended from his job due to national security concerns. His cousin, Tanveer Hussain, was found guilty of plotting to blow up trans-atlantic airlines.

There is no suggestion that Tariq has ever been involved in terrorist activity or has terrorist sympathies. His barrister, Robin Allen QC, described him as “highly regarded by his peers and supervisors” and with an “impeccable employment record”.

There has not yet been a substantive hearing of Tariq’s claim— that his suspension and the withdrawal of his security clearance were unlawful discrimination. Instead, debate has centred round the procedural issue of whether a closed material procedure and a special advocate can be used in the employment tribunal, and whether there is a “gisting” duty on the part of the Home Office.

The Home Office disputed whether a “gisting” duty applied, and Tariq cross-appealed on the point of whether a closed material procedure is lawful in the employment tribunal.

Lord Justice Maurice Kay and two judges found the employment tribunal did have the power to order a closed material procedure.

They held that the case of Home Secretary v AF (No 3) [2009] UKHL 28 applied, which meant there was a European Convention on Human Rights, Art 6 requirement on the Home Office to provide Tariq and his legal representatives with the “gist” of the closed material.

In deciding whether the open evidence should be heard before the closed evidence, or vice versa, Maurice Kay LJ said that if Tariq’s legal representatives believed his interests would be best served by hearing the open evidence first then there would have to be “very cogent reasons indeed” to justify a decision to the contrary.