Might strongly-held religious views disqualify one from working in an organisation involved in sensitive matters of national security?
In Storey v Government Communication Headquarters (GCHQ) (National Security)  UKEAT 0269 14 2210 the answer was, in certain circumstances, “yes” – though a heavily-qualified “yes” because there were concerns about the applicant’s mental health.
Mr Storey applied for a job at GCHQ. Eighteen months later, his application for employment was rejected because that he was regarded as unsuitable for “Developed Vetting”. After psychological assessment and psychometric tests, an assessor concluded that
“Mr Storey had experienced psychotic episodes in the past and there was a risk that he would experience psychotic episodes in the future. This could result in behaviours which would interfere with his work and pose a potential serious security risk. There were concerns about Mr Storey’s integrity and reliability” .
Mr Storey claimed unlawful discrimination on grounds of disability and religion or belief. One of the reasons for the length of the proceedings was that the claim had to be dealt with, in part, in closed proceedings because of its national security aspects and the need to maintain secrecy in relation to certain material relied on by GCHQ. A Special Advocate was appointed on Mr Storey’s behalf to protect his interests in relation to the closed material and the closed proceedings .
The Employment Tribunal’s decision
The Employment Tribunal concluded inter alia that Mr Storey had not been unlawfully discriminated against because his adverse treatment was not on the grounds of his disability or religious beliefs but for reasons of “security concerns and the risks to national security he posed”. The Tribunal did not consider separately the national security exemptions in s 59 of the Disability Discrimination Act 1995 and Regulation 24 of the Employment (Religion and Belief) Regulations 2003 .
On the religious discrimination point, the Employment Tribunal found that the religious claim “was very much interlinked to that of direct disability discrimination”. At paragraph 97 of its determination the Tribunal reflected the argument advanced by GCHQ that the reason for Mr Storey’s adverse treatment was that his views gave rise to a potential conflict of interest that could put national security at risk. It was argued that any comparator holding strong beliefs of that kind, whether political, ethical or non-religious, who indicated that he or she would put those beliefs before the work at GCHQ would have been treated as he had been . Crucially:
“The Tribunal made reference to the Claimant’s statement that he would without doubt, if required to choose between his loyalty to his country and his loyalty to God, choose his loyalty to God whatever the outcome” .
The Employment Tribunal appeared to accept that submission, concluding that any comparator in materially the same circumstances as Mr Storey would have been treated in precisely the same way because of the national security risks identified. At paragraph 98 of its determination the Tribunal accordingly rejected the claim of direct discrimination on grounds of religion or belief .
The Employment Appeal Tribunal proceedings
Before the Employment Appeal Tribunal the Special Advocate contended on Mr Storey’s behalf that the lower Tribunal’s decision was vitiated by serious errors of law . In light of the evidence and findings of fact, he submitted that both the disability and the religion or beliefs themselves were a reason (though not the only reason) for his treatment and, accordingly, that direct discrimination was established; moreover, “the real question in this case was justification, which the Employment Tribunal did not ultimately determine” .
On the specific issue of religion (Ground 3), Silber J (sitting alone) began from the conclusion that the fact that Mr Storey was a devout Christian was not in itself an issue for GCHQ :
“50. The Tribunal found that this claim was very much interlinked to the claim of direct disability discrimination. Given that the Claimant’s psychosis had included a significant religious element, this was a proper conclusion to draw. However, the Tribunal made clear findings that the concerns were not because of his religious beliefs but were properly separable, so that the claim failed. The findings and conclusions to that effect are set out in the Closed Reasons and I am satisfied that a permissible distinction was properly drawn between the Claimant’s beliefs, which were of no concern, and the effect those beliefs might have on his behaviour and judgment in the workplace, which gave rise to national security concerns in the circumstances and were of concern to the Respondent [emphasis added].
51. Accordingly, a permissible distinction was drawn by the Respondent and accepted by the Tribunal. There was evidence to support the Tribunal’s findings and no error of law is made out.”
On Grounds 4 and 5 (A Number of Reasons) the Special Advocate had contended that both in relation to direct disability discrimination and direct religious discrimination the Tribunal had failed to recognise that there could be (and was) more than one reason for the impugned treatment, so that both grounds should have been found established . The Tribunal had held that: “The reasons for refusing Developed Vetting were not on the grounds of the disability, but for a number of significant factors, only one of which related to mental health” . Silber J disagreed: she was satisfied that, in using the phrase “related to mental health”,
“the Tribunal was drawing a proper distinction, amply supported by the evidence and findings, between the disability itself and reasons related to the disability. Read in context and with the other findings as a whole, this was a finding that it was not the Claimant’s past disability that played any part in the reasons for the impugned treatment, but rather the security concerns that led to the adverse decisions. Those security concerns derived from a number of matters none of which was the disability itself, but one of which related to mental health. Accordingly, there was no error as alleged. A similar distinction was properly drawn in relation to the Claimant’s religious beliefs and the separate security concerns they gave rise to. The Tribunal did not find that both played a part in the reasons for the adverse treatment, but the beliefs themselves did not form part of the Respondent’s reasons. Accordingly, again, I am satisfied that there was no error of law in the Tribunal’s approach to this issue” [55: emphasis added].