Home Office v Shah (National Security) [2025] EAT 75 (29 May 2025)

Executive summary

The Employment Appeal Tribunal heard the Home Office’s appeal against a tribunal order requiring a gist of the respondent’s sex-discrimination defence to be given to Mr Shah in a case where his security clearance had been withdrawn on national security grounds. The EAT held that the tribunal had erred in making that gisting order and used the appeal to set out the correct legal test and approach for such applications in national-security employment proceedings.

Key points

• Parties: Home Office v Mr Mohammed Shah; the claimant was an Immigration Officer whose security clearance was withdrawn and who alleged direct sex discrimination.
• Core issue: whether, in closed national-security proceedings, the tribunal could require the respondent to provide the claimant with a gist of its defence.
• Holding: the tribunal’s order requiring a claimant-facing gist was wrong in law.
• Reasoning: the judgment analyses the Employment Tribunal national-security rules, including rule 94 and Schedule 2, and the limits they impose on disclosure, closed material, and special advocate procedure.
• Authority: the judgment discusses Tariq v Home Office and the relationship between gisting, fair hearing rights, and national security.
• Sanctions/export-control angle: none stated; the case is about national-security vetting and closed material procedure rather than sanctions or export controls.

Why it matters

This is relevant to national-security litigation because it clarifies how far tribunals can go in requiring disclosure to an excluded claimant where the employer says the real reasons are secret security grounds. For sovereign-risk and compliance audiences, it shows that security-clearance decisions can be litigated through closed procedures with special advocates, but the court will police the limits of compelled disclosure.

Implications

For employers and government respondents, the judgment supports resisting claimant-facing gist orders where disclosure would cut across the national-security framework in the ET Rules. For claimants and special advocates, it signals that arguments for fairness-based disclosure must be framed within the specific statutory and rule-based controls on closed material proceedings, not as a general entitlement to the respondent’s substantive national-security case.