Employees bringing tribunal claims which may invoke national security issues need not be excluded entirely from their hearing under the Investigatory Powers Act 2016, the Employment Appeal Tribunal has ruled.
In National Crime Agency v DP & Ors the tribunal considered the application in employment law of Section 56 of the IPA, which is designed to keep secret the existence of interception of communications
It found the addition of the word ‘particular’ in a sub-paragraph of the section would help the employment tribunal to ensure ‘that the degree of intrusion on the employee’s participation in the hearing in not greater than is justified by the objectives which [S56 IPA] is intended to serve’.
The judgment considered whether an open hearing could be held of a claim brought by a former employee who was in a role where, it is assumed, they dealt with material obtained through lawful interception of communications – which is ‘neither accepted nor denied to be factually correct’.
Evidence resulting in the disclosure of sensitive information would be ‘unlikely…in the scenario that has been assumed’.
His Honour Judge James Taylor said: ‘What may seem like pussyfooting around the issue results from the apparently very broad terms in which Section 56 IPA is drafted. Section 56 IPA prevents evidence being given in proceedings that relates in any way to intercepted communications, primarily to protect the interests of national security.’
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He added: ‘The employment tribunal can ensure that the degree of intrusion on the employee’s participation in the hearing is not greater than is justified by the objectives which Section 56 IPA is intended to serve.
‘It can only be assumed that the legislative intent behind Section 56 IPA was a proportionate protection of national security rather than a blanket exclusion of claimants from hearings which will only involve a broad consideration of their job role in circumstances that often will not pose a risk to national security.’
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