Is it lawful to reject a job applicant because he failed to obtain security clearance, even if the reasons why he was refused security clearance were partly related to a past disability and to his religious beliefs?
Yes, according to the Employment Appeal Tribunal in the recent case of Storey v Government Communication Headquarters (GCHQ), although we expect that this decision may be subject to challenge.
In 2008, Charlie Storey applied for a high security role at GCHQ, the Government’s security and intelligence organisation. Mr Storey’s application was rejected after he was refused security clearance because of concerns partly related to his past disability and partly to his religious beliefs. He had experienced a drug-induced psychosis some 17 years previously and had suffered further episodes of anxiety and paranoia subsequently. This led a consultant psychologist to conclude that Mr Storey was not a suitable candidate to hold the required level of security clearance for the role. Separately, a Vetting Officer also recommended that security clearance should be refused after Mr Storey confirmed, during interview, that, if required to choose between his loyalty to his country and his loyalty to God, he would choose his loyalty to God whatever the outcome. This led the Vetting Officer to conclude that Mr Storey’s views gave rise to a potential conflict of interest that could put at risk national security.
Mr Storey claimed unlawful disability and religion and belief discrimination. The Employment Tribunal dismissed his claims and he appealed to the Employment Appeal Tribunal (EAT). The EAT found no unlawful discrimination. Mr Storey’s job application was rejected because he failed to secure security clearance. Although the reason why Mr Storey failed to secure security clearance was in part due to his past disability and religious beliefs, the actual reason why his application was rejected was because he failed to secure security clearance and NOT because of his disability and religious beliefs.
The EAT’s findings in relation to Mr Storey’s religion and belief claim were largely dealt with in closed proceedings, because of the national security aspects of the claim and the need to maintain secrecy in relation to certain material relied upon by GCHQ. However, the EAT openly identified that the fact that Mr Storey is a devout Christian was not an issue for GCHQ in itself. The EAT distinguished between Mr Storey’s beliefs, which were of no concern to GCHQ, and the effect that those beliefs might have on his behaviour and judgement in the workplace, which did give rise to national security concerns.
The EAT also considered whether Mr Storey had a claim of “disability related discrimination” under the now defunct Disability Discrimination Act 1995. Unfortunately for Mr Storey, his job application was rejected during the period between the House of Lord’s ruling in the widely reported case of Lewisham LBC v Malcolm and the coming into force of the Equality Act 2010, which effectively replaced “disability related discrimination” with “discrimination arising from disability”. In Malcolm, the House of Lords significantly narrowed the application of disability related discrimination by ruling that, if an employer would have treated a non-disabled person in the same way as a disabled person, there could be no disability related discrimination, even if the disabled person was adversely treated for a reason which was related to his disability. In Mr Storey’s case, GCHQ would have rejected any applicant who failed to secure the required level of security clearance, regardless of whether they were disabled. Accordingly, Mr Storey’s claim of disability related discrimination also failed.
Even if Mr Storey had been able to bring a claim of “discrimination arising from disability” under the Equality Act, it is unlikely that such a claim would have succeeded. This is because, although Mr Storey may have been treated unfavourably because of something arising in consequence of his disability, it would have been difficult for him to overcome the second limb of the test to establish that his treatment was unjustified. It is also unlikely that a claim of indirect religion or belief discrimination would have succeeded because, even though Mr Storey may have been able to establish that the requirement to obtain security clearance puts people sharing his beliefs at a particular disadvantage, it is highly probable that GCHQ would have been able to justify rejecting applications from those who failed to obtain security clearance. Were GCHQ unable to justify the rejection of his application, either they would need to grant Mr Storey the required level of security clearance despite the threat to national security; or they would be forced to employ Mr Storey in the role without granting him the required level of security clearance, which would likely make the role unworkable.