Home Office Wins Appeal Over Gisting Order in Discrimination Case Involving National Security
The Home Office has won an appeal against a tribunal ruling. The case involved a discrimination claim and sensitive national security information. A 'gisting order' was successfully challenged.
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Home Office Prevails in Employment Appeal Tribunal Case
The Home Office has successfully appealed a decision made by an Employment Tribunal regarding a "gisting order" in the case of Home Office v Mr Mohammed Shah. The Employment Appeal Tribunal (EAT) ruled in favour of the Home Office, finding that the original tribunal had erred in its approach to balancing the rights of the claimant with national security considerations.
Background of the Case
Mr. Shah, formerly an Immigration Officer, brought a claim of sex discrimination against the Home Office after his security clearance was withdrawn, leading to his dismissal. The Home Office argued that the withdrawal of security clearance was based on national security grounds, information which could not be shared directly with Mr. Shah.
Due to the sensitive nature of the information, a "closed procedure" was implemented, and Special Advocates were appointed to represent Mr. Shah's interests. The original Employment Tribunal ordered the Home Office to provide a "gist" – a summary of their defence – to Mr. Shah. This order was subsequently appealed by the Home Office.
The Appeal Tribunal's Decision
His Honour Judge Auerbach, presiding over the EAT, allowed the Home Office's appeal. The judge found that the original tribunal had not correctly applied the legal test for determining whether a "gist" should be provided in cases involving national security. The EAT emphasised that while tribunals must ensure fairness, they must also give significant weight to the assessment of national security risks made by the executive branch of government.
The EAT also noted that Employment Tribunals are not well-placed to evaluate national security risks. The judgement referred to previous case law, including Tariq v Home Office, which clarified that there is no absolute requirement to provide a "gist" if it would jeopardise national security.
Key Legal Principles
The EAT's decision reinforces the importance of balancing individual rights with the need to protect national security. It clarifies that while tribunals must scrutinise claims of national security risks, they must also respect the expertise and assessment of the executive branch in this area. The case also highlights the role and limitations of Special Advocates in representing claimants in closed proceedings.
The case has been remitted for further consideration.
Read the entire judgement here: Home Office v Mr Mohammed Shah [2025] EAT 75
