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Secret evidence: coming to an employment tribunal near you

Secret evidence can leave employees in the dark. Nicole Salow, CC BY-NC-ND

Imagine being dismissed from your job without being told of the reasons why and without being provided with any evidence of wrongdoing. This Kafka-esque scenario feels like a tale from decades ago and deep behind the iron curtain – but it is happening in Britain, right now. In fact, it is happening more and more.

One recent claim for discrimination and unfair dismissal helps illuminate the story. It failed after a seven year legal action.

Afzaal Ahmad Kiani, was suspended from duty as an immigration officer at the Home Office in 2008 pending a review of his security vetting status. He was later dismissed on the basis that he no longer met the requirements set out in government vetting policy. However, no substantial explanation for this has ever been revealed.

Because national security implications were raised, evidence can lawfully be withheld and proceedings can be held in secret, that is, without the presence of the person or their legal representatives. This is known as “closed material procedure”. This is a mechanism for dealing with cases where a government body asserts that information is too sensitive to disclose. Rather than a rarity, this aspect of the British legal system is becoming a recurring theme.

The legal framework

Since 1997, more than 15 pieces of legislation have been passed which enable this to happen covering areas including parole board hearings, bail hearings, inquests, asset freezing cases and cases heard before The Special Immigration Appeals Commission. The Justice and Security Act 2013 extended this practice to general civil proceedings.

And amendments to the Employment Tribunals Act 1996 have provided a statutory framework for “secret” employment tribunals. So this would apply to you if you were working in a passport office in Portsmouth, a job centre in Slough, or indeed any civil service role.

The judiciary had been leaning towards leniency. STV Photos, CC BY-NC-ND

The concession to a worker who might find themselves facing such a tribunal comes with the special advocate, a government appointed lawyer who represents the person’s interests in relation to material that is kept secret from that person. However, the special advocate cannot communicate to that person or their legal representatives any details of that material, nor can they take instructions with regard to the nature of the material. Hence there is no opportunity to question the validity of any of the information or offer a defence against any allegations of wrongdoing.

Clearly, these procedures raise issues of principles of fundamental concerns such as the right to a fair hearing provided under the European Convention of Human Rights, and equal treatment directives under EU law. Numerous legal challenges have been raised.

Getting the gist

In a 2009 case it was held that the right to a fair hearing under the Convention would not be violated providing that at least a minimum amount of information regarding allegations was made available. This has become known as “gisting” in legal circles and although a 2011 case deemed that this protection was not an absolute requirement, it appeared that the judiciary favoured at least a modicum of fairness.

In a case from 2013 it was ruled by the European Court of Justice that in the interest of procedural fairness, the essence of the allegations should be provided. Further, national courts should strike a balance between the right to effective judicial protection guaranteed by the Charter of Fundamental Rights under EU law and the requirements of state security. Hence some inroads in the interests of fundamental fairness, albeit marginal, were achieved.

Not at liberty to say… Mr.Kitsadakron Pongha, CC BY-NC-ND

A deeply concerning issue of the Kiani case is that he was not allowed even the “gist” of the case against him. The court of appeal ruled that there is a distinction between interference with free movement or deprivation of liberty cases, and employment rights. Thus in the context of employment tribunals, even a minimum amount of information does not need to be provided and the court’s duty to balance competing interests of state security and a fair hearing is satisfied by the special advocate system.

In other words, if you’re up before an employment tribunal and it is decided the information may be sensitive, then you might not even get the “gist” of allegations if your liberty is not at stake.

Desperately seeking fairness

This case denotes a disturbing twist in the tale. It seems that judicial inclination (as evidenced in the 2009 case above) to reason and interpret in favour of softening the sledgehammer effect of “closed material” procedures has taken a U-turn.

What’s more, faith in the special advocate system may be misplaced. The role of the special advocate is limited. Communication with the individual or their representative with regard to undisclosed material is forbidden. Therefore the truth of any allegations cannot be questioned.

It is noteworthy that in the same year as the closed material procedure was extended to include employment tribunals, a significant number of special advocates resigned in protest at the prohibition of communication with the person in question. This inherently interferes with their function of protecting their interests and highlights the unfairness of the system. The implications for the future of the fairness of such employment tribunals are ominous.

Shazia Khan of Bindmans LLP who represented Kiani condemned the practice as discriminatory and emphasised the devastating effect that this seven-year battle has had on her client. She has also warned against the possibility of an increase in the frequency of invoking the “closed material procedures” given the acute lack of transparency or fairness.

It is disquieting to reflect that this may denote an increased propensity to invoke “secret” procedures in the name of expediency. Where once the judiciary expressed a willingness to defy the most draconian aspects and guarantee at least a kernel of hope, in this case that prospect has been abandoned.

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