Storey v GCHQ UKEAT/0269/14/LA
Appeal against the dismissal of the claimant's claims of discrimination. Appeal dismissed.
The claimant applied for a job at GCHQ but his application for employment was rejected on the basis that he was regarded as unsuitable for Developed Vetting ("DV"). His claims of, among other things, unlawful disability and religion or belief discrimination were dismissed. The Tribunal concluded that the claimant had not been unlawfully discriminated against since his adverse treatment was not on the grounds of his disability or religious beliefs, but was for reasons of security concerns and the risks to national security he posed. The claimant appealed.
The EAT dismissed the appeal. The Tribunal concluded that the claimant was refused clearance because of security concerns that were partly related to his past disability and religious beliefs but was entitled to conclude that the disability and religious beliefs were not themselves the ground of or reason for the impugned treatment. This was a legitimate distinction in the circumstance and not in error of law or inadequately reasoned.
Appeal No. UKEAT/0269/14/LA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 4 February 2015
Judgment handed down on 22 October 2015
THE HONOURABLE MRS JUSTICE SIMLER DBE
GOVERNMENT COMMUNICATION HEADQUARTERS (GCHQ) (RESPONDENT)
Transcript of Proceedings
For the Appellant MR BEN COLLINS (of Counsel) Instructed by: Government Legal Department The Special Advocates Support Office One Kemble Street London WC2B 4TS
For the Respondent MISS KATE GRANGE (of Counsel) and MISS CLAIRE PALMER (of Counsel) Instructed by: Government Legal Department One Kemble Street London WC2B 4TS**SUMMARY**
DISABILITY DISCRIMINATION - Direct disability discrimination
DISABILITY DISCRIMINIATION - Disability related discrimination
RELIGON OR BELIEF DISCRIMINATION
The Claimant was rejected for employment as an Information Assurance and Network Defence Specialist at GCHQ, a post that required the highest level of security clearance. In a decision with Open and Closed Reasons, all claims of unlawful discrimination were rejected by the Tribunal. The Claimant appealed.
The Tribunal concluded that the Claimant was refused clearance because of security concerns that were partly related to his past disability and religious beliefs but was entitled to conclude that the disability and religious beliefs were not themselves the ground of or reason for the impugned treatment. This was a legitimate distinction in the circumstance and not in error of law or inadequately reasoned. The appeal accordingly failed.**THE HONOURABLE MRS JUSTICE SIMLER DBE****Introduction**
- In July 2008 Mr Storey who is the Appellant (but is referred to as the Claimant as he was below), applied for a job at GCHQ (the Respondent). Eighteen months later following a process described further below, his application for employment was rejected on the basis that he was regarded as unsuitable for Developed Vetting ("DV"). His claims of, among other things, unlawful disability and religion or belief discrimination, presented to the Tribunal on 15 March 2010, were finally heard in May 2013. That delay was in part as a consequence of a stay imposed at a CMD on 17 September 2010 pending the decision of the Supreme Court in Home Office v Tariq  1 AC 452, but also partly because of the complexities of the claim having to be dealt with in part in closed proceedings, because of the national security aspects of the claim and the need to maintain secrecy in relation to certain material relied on by the Respondent. A Special Advocate was appointed on the Claimant's behalf, in order to protect his interests in relation to the closed material and the closed proceedings.
- By a Reserved Judgment sent to the parties on 8 October 2013, the Employment Tribunal (comprising Employment Judge Lewzey, Ms Taylor and Mrs Pound) unanimously rejected all claims. The Tribunal produced both Open and Closed Reasons for its decision ("the Open Reasons" and "the Closed Reasons"). The Tribunal concluded, inter alia, that the Claimant had not been unlawfully discriminated against since his adverse treatment was not on the grounds of his disability or religious beliefs, but was for reasons of security concerns and the risks to national security he posed. Consequently the discrimination claims were dismissed and the Tribunal did not give separate consideration to the national security exemptions set out at section 59 of the Disability Discrimination Act 1995 (the "DDA") and Regulation 24 of the Employment (Religion and Belief) Regulations 2003 (the "2003 Regulations").
- The Claimant appealed by way of two separate Notices of Appeal: one from himself appealing against the Open Reasons of the Employment Tribunal; and a Notice of Appeal from the Special Advocate appealing against the Closed Reasons of the Tribunal. The Claimant's appeal was rejected on the sift and he did not exercise any further rights in relation to that Notice of Appeal. The Notice of Appeal submitted by the Special Advocate was permitted to proceed to a Full Hearing in part. The grounds set out at paragraphs 8 to 14, relating only to the claims of unlawful direct discrimination (disability and religion) were permitted to proceed. All other grounds were dismissed by Langstaff P as disclosing no arguable point of law. The President also made an order pursuant to Rule 30A(2) of the Employment Appeal Tribunal Rules 1993 (as amended) that the hearing of this appeal be conducted in private when closed material and/or evidence is being considered and that the Claimant be excluded from the hearing during any such private session (see order dated 9 December 2014).
- Before the Tribunal, Mr Storey represented himself in open sessions whilst Mr Ben Collins appeared as Special Advocate representing his interests in the closed sessions, and he has continued to do so. The Respondent appeared by Miss Kate Grange, who has appeared before me with the assistance of Miss Claire Palmer.
- At the beginning of the hearing, after careful consideration, I directed that the whole appeal hearing should take place in private given its focus on the Closed Reasons and findings based on closed material. Consequently although he attended, the Claimant was not permitted to be present, as I explained to him. He produced a written submission which I have read and considered. This Judgment contains my Open Reasons for rejecting this appeal. A separate Judgment containing my Closed Reasons for reaching the same conclusions has also been produced.
- It is unnecessary to set out the facts in any detail. Both the Open and Closed Reasons contain a clear account of the process followed by the Respondent following receipt of the Claimant's application for employment, and the following summary of the facts found by the Tribunal is therefore sufficient.
- In July 2008 the Claimant applied for a role at GCHQ and he was subsequently interviewed in October 2008, and was successful at interview. By an email dated 23 October 2008 he was informed that his application was ready to progress to the next stage but that "a firm offer of appointment is subject to satisfactory enquiries into health, security and administrative matters. This normally takes around 6-7 months". He was asked to complete a DV form as soon as possible, and confirmed that he had already handed in the DV form at interview.
- On 25 November 2008 the Claimant's GP, Dr Rupert Flint, provided information about the Claimant's past medical history and treatment including the fact that he had suffered from a drug induced psychosis in 1991, with further episodes of anxiety and paranoia in 2001 and 2003. However Dr Flint concluded by supporting the Claimant's application to work at GCHQ and stating that the Claimant's "past medical history has little relevance to his ongoing mental state now and when there was a problem, it was associated with illicit drug misuse some 17+ years ago". The Claimant told the Tribunal that he had nine months of recreational drug use in 1991 but had taken no drugs since.
- In December 2008 Dr L, a Consultant Clinical and Forensic Psychologist for GCHQ, was asked to consider the information which the Claimant had provided and gave an opinion as to whether he was suitable for DV security clearance. Dr L prepared a first written report without seeing the Claimant. It referred to the background provided by the GP and to the good prognosis provided recreational drugs were avoided in future. Dr L's report set out an opinion and a summary of risks and vulnerabilities based on the medical material and information provided by the Claimant.
- The gist of Dr L's first report, provided to the Claimant was as follows:
* Mr Storey was vulnerable to experiencing psychotic symptoms which could result in behaviours which would have implications for the risk to the organisation.
* Mr Storey was vulnerable to developing anxiety symptoms which might render him unavailable for work for extended periods.
* There were concerns about the reliability of Mr Storey's accounts.
* There were concerns that Mr Storey was lacking an insight into mental health problems.
- By letter dated 20 January 2009, the Claimant was told that his application could not be taken any further, the letter reiterating that the conditional offer had been subject to satisfactory completion of enquiries into health, administrative and security matters.
- Subsequently the Claimant wrote to the Respondent contending that the decision had been unfair and requesting an explanation of the reasons for it. In a second email, he stated his intention to commence Employment Tribunal proceedings on grounds of health and religious or belief discrimination.
- By letter dated 19 February 2009, the Respondent wrote to the Claimant. The letter stated that the consultant psychologist had assessed him as "not a suitable candidate to hold a security clearance at the Developed Vetting level". However it indicated that this was not a formal vetting refusal and the Respondent was prepared to reconsider its decision to refuse the application at that stage and proceed with further enquiries into health and security matters in order to determine his fitness to hold DV security clearance. This would necessitate a full Occupational Health assessment with an additional psychological assessment.
- The Claimant chose to proceed with the formal DV process.
- On 4 June 2009, he was assessed by the Respondent's consultant in the Occupational Health Department, Dr M. Dr M concluded that the Claimant was "… in good health, with no significant underlying health problems … he is medically fit for the applied post".
- On 5 June 2009 the Claimant underwent a psychological assessment with Dr L. He completed psychometric tests which took about an hour and a half. A second written report dated 11 June 2009 was produced by Dr L. It dealt with risks and vulnerabilities. The gist of the second report, which was disclosed to the Claimant stated:
"• 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."
- On 12 October 2009, the Claimant had a lengthy vetting interview with Mr J, the Vetting Officer. The Tribunal found Mr J to be a serious and professional individual. Mr J wrote a substantial Vetting Decision recommending that DV clearance should be refused.
- A Security Vetting Notification dated 29 December 2009 was issued, refusing DV clearance for the Claimant. This decision was communicated to him by letter dated 9 February 2010, stating, inter alia:
"As you will be aware … the initial psychological assessment raised concerns about your suitability to hold a security clearance. However, at your request, we resumed the recruitment process and conducted a full review into health and security matters to determine both your fitness to fulfil the requirements of the role applied for and your suitability to hold a Developed Vetting (DV) security clearance.
This process has now been concluded. As you will know, the Departmental Medical Adviser assessed you to be medically fit for work and consequently you proceeded to the next stage of the recruitment process in which your suitability to hold the requisite Developed Vetting (DV) security clearance was assessed. I regret to inform you that the decision has been taken to refuse you DV security clearance. I am not able to provide you with the full reasons behind this decision but I can confirm that a comprehensive review of your personal circumstances gave rise to several concerns …"
- So far as relevant to this appeal, having made detailed findings as to the material facts at paragraphs 19 to 52, in its Open Reasons at paragraphs 57 to 72 the Employment Tribunal dealt with the claim based on unlawful direct disability discrimination, identifying five detriments relied on by the Claimant and stating that it would deal with each of these detriments both in turn and collectively (see paragraph 60 Open Reasons).
- The detriments and the Tribunal's conclusions in relation to each detriment were as follows:
(i) the GCHQ policy: the Tribunal found that the policy stated: "if your ability to carry out a particular job is likely to be affected by disability, we will take reasonable steps to identify and implement ways of overcoming these difficulties". There was in addition, on the GCHQ careers website a statement to the following effect: "it is unlikely we will consider you for a position in GCHQ if you: … have ever suffered from bipolar disorder or a psychotic illness …". The Claimant asserted that the policy and statement operated as a blanket ban on those working at GCHQ with certain disabilities. The Tribunal found that the policy did not amount to a blanket ban and therefore that it did not "of itself amount to less favourable treatment on the grounds of disability" (paragraph 63).
(ii) The initial refusal of employment in January 2009: the Tribunal found that the initial refusal was because of the opinion given by Dr L that the Claimant was not suitable for DV following an investigation of the written evidence. It held "the reason for the initial refusal was because of security concerns arising out of Dr L's report. The reason was the concerns and not disability itself and therefore, the initial refusal cannot amount to direct discrimination" (paragraph 66).
(iii) The medical assessments of Dr L and Dr M in June 2009: the Tribunal found that there was no detriment in the requirement on the Claimant to undergo additional medical assessments because he was happy to undergo them and consented to them. The Tribunal found in addition, that there was no evidence that the medical assessments were undertaken because of or on grounds of the Claimant's past disability (paragraphs 67 and 68).
(iv) The vetting interview in October 2009: a number of complaints about the conduct of the vetting interview were made but were rejected as a matter of fact by the Tribunal. Ultimately the Tribunal held that there was no evidence from which to infer that the manner in which the vetting interview was conducted was on the grounds of the Claimant's past disability (paragraph 70).
(v) The vetting refusal in February 2010: so far as this complaint was concerned the Tribunal was: "satisfied that the reasons for refusing DV were not on the grounds of the disability, but for a number of significant factors, only one of which related to mental health" (paragraph 71).
- At paragraph 72 of the Open Reasons the Tribunal said, "having considered all five detriments, there is no evidence that in relation to these matters, Mr Storey was less favourably treated on the grounds of his past disability and in those circumstances, the unanimous judgment of the tribunal (is) that the claim of direct disability discrimination fails".
- So far as disability related discrimination is concerned, at paragraphs 73 to 75 of the Open Reasons, the Tribunal referred to the decision in Lewisham LBC v Malcolm  UKHL 43 substantially reducing the scope of disability related discrimination, and concluded that in light of the findings on direct disability discrimination the claim of disability related discrimination also failed. The Tribunal made reference at paragraph 75 to the argument of justification on national security grounds advanced by the Respondent and indicated that this would be addressed later in the Reasons. In fact, justification was not subsequently addressed and indeed at paragraphs 90 to 91 having set out section 59 (2) and (3) of the DDA which together provide that nothing in the DDA makes unlawful any act done for the purposes of safeguarding national security, the Tribunal found that it was unnecessary to consider whether the "national security" exemption applied in this case.
- The Tribunal dealt with direct religious discrimination at paragraphs 92 to 98 of the Open Reasons, finding that the claim based on this ground was very much interlinked to that of direct disability discrimination. At paragraph 97 the Tribunal reflected the argument advanced by the Respondent that the reason for the adverse treatment meted out to the Claimant was because his views gave rise to a potential conflict of interest which could put national security at risk. It was argued that any comparator holding strong beliefs of this kind, whether political, ethical and non-religious who indicated that they would put those beliefs before their work at GCHQ would have been treated in the same way. 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. It seems to be implicit in paragraph 97 that the Tribunal accepted this submission because it found that any comparator, in materially the same circumstances as the Claimant, would have been treated in precisely the same way as he was treated because of the national security risks identified. The Tribunal accordingly rejected the claim of direct discrimination on grounds of religion or belief (paragraph 98).
- Against those findings and conclusions, the Special Advocate contends that a series of serious errors of law vitiate the Tribunal's decision. The following issues arise on this appeal accordingly:
(a) Whether the Tribunal failed to deal with the argument advanced by the Special Advocate that the GCHQ policy, even if not a blanket ban was itself less favourable treatment on the grounds of disability because it led to a less favourable consideration of his application. Alternatively, whether the Tribunal failed to give adequate reasons for rejecting this submission.
(b) Whether the Tribunal's findings that the initial refusal of employment by GCHQ was because of security concerns arising out of Dr L's report; and that the reason was the concerns and not the disability itself, which could not therefore amount to direct discrimination was in error of law because it was not possible to separate the concerns from the disability. Further, whether the failure to recognise that the concerns were about the disability itself is an error of law.
(c) Whether precisely the same error, but in relation to religion, arises in relation to the Tribunal's findings and conclusion at paragraph 108 of the Closed Reasons.
(d) Whether in finding that, "the reasons for refusing DV were not on the grounds of the disability, but for a number of significant factors, only one of which related to mental health" (paragraph 71 of the Open Reasons and 75 of the Closed Reasons) the Tribunal erred in law by failing to recognise that the reason for the less favourable treatment need not be the only reason provided that it is a reason which is significant in the sense of being more than trivial.
(e) Whether a similar error arises in paragraph 104 of the Closed Reasons in relation to the Tribunal's conclusions on the religion and belief claim in that the Tribunal found that Dr L's concern was with mental health, but failed to recognise that the Respondent's decision could have been taken for more than one reason, and the Claimant's case was that his religious beliefs were at least a significant reason for the decision if not the only reason.**The Relevant Law**
- The relevant legal principles are not in dispute. Rather, it is their application to the facts as found by the Tribunal that gives rise to the questions on this appeal. In relation to the disability aspect of this claim, two forms of disability discrimination are relevant: direct disability discrimination found in section 3A(5) and disability related discrimination found in section 3A(l) of the DDA, as follows:
"(1) … [A] person discriminates against a disabled person if-
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to who that reason does not or would not apply and
(b) he cannot show that the treatment in question is justified.
(2) … [A] person … discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disable person.
(3) Treatment is justified for the purposes of subsection (l)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).
(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having a particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
- The Court of Appeal dealt with the relationship between these two forms of discrimination in JP Morgan v Chweidan  ICR 268. The following propositions follow from the judgment of Elias LJ:
(a) direct disability discrimination occurs where a person is treated less favourably than a similarly placed non-disabled person on grounds of disability. This means that a reason for the less favourable treatment, though not necessarily the only reason, must be the Claimant's disability.
(b) A focus on the reason for the treatment of a Claimant will in many cases answer the question whether there has been unlawful direct discrimination. If the reason is a proscribed reason it is likely to follow that a person to whom the proscribed reason does not apply, would not have been treated in the same way.
(c) Until Malcolm disability related discrimination was thought to have a wider ambit, namely, where a disabled person was adversely treated for a reason which was related to his disability, that would be unlawful disability related discrimination unless justified, even if a non-disabled person would also have been treated in the same way if the reason had applied equally to him.
(d) In Malcolm, the House of Lords held that if the employer would have treated a non-disabled person in the same way as the disabled Claimant, there could be no disability related discrimination. Disability related discrimination could only be established if a non-disabled person would have been more favourably treated.
(e) For all practical purposes the concept of disability related discrimination following Malcolm added nothing to the concept of direct discrimination and any disability related discrimination will amount to direct discrimination, so that if a Tribunal finds that the reason why there is no disability related discrimination is that the employer would have treated a non-disabled person the same way, that is necessarily inconsistent with the conclusion that there is direct disability discrimination.
- The position has changed under the Equality Act 2010 which has in effect reverted to the understanding of the law as it was before Malcolm but that cannot assist the Claimant.
- The analysis set out above in JP Morgan led to the conclusion that the reason for the different treatment or discrimination in that case had not been the disability itself but a reason related to it, namely the inability to work the hours necessary to expand the client base. Elias LJ held accordingly, that the Tribunal's findings in that case, read fairly, afforded no proper basis for sustaining a finding of unlawful direct discrimination. He went on to hold:
"33. My principal reason for reaching that view is the tribunal's analysis of the reason for dismissal. The tribunal states in terms that the reason for finding that disability played a part in the dismissal is that it explained why the Claimant was not able to work the hours necessary to increase his client base. It did not say that the employer had failed to discharge the burden which shifted to it by failing to provide an explanation for the dismissal. On the contrary, it accepted that there was an explanation, namely that the Claimant could not work the relevant hours, but concluded that this was sufficiently connected to his disability to constitute direct disability discrimination. That was wrong as a matter of law once the tribunal also found that a non-disabled person would similarly have been dismissed."
- A similar approach was adopted in Cordell v FCO  ICR 280 at  and  where the Appeal Tribunal (Underhill P) dismissed an appeal relating to a profoundly deaf FCO employee who had been unable to take up a posting as deputy head of mission in Kazakhstan because the costs of accommodating her disability were prohibitive and there was difficulty in providing continuity of lip speaker support in the post. The Claimant claimed direct discrimination on the grounds of her disability, and having reiterated that where there is no actual comparator it is usually better to focus on the reason why question than get bogged down in arid and confusing disputes about hypothetical comparators, the Employment Appeal Tribunal concluded:
"22. We start, in accordance with the approach set out above, by considering the reason why question. In our view, if it is asked what was the reason why the Appellant was not appointed as Deputy Head of Mission at Astana, the straightforward answer is that it was the cost of providing her with the support necessary to do her job, coupled with the uncertainty about whether such support would be available at all. That is of course a reason related to her disability, but it is not the same as saying that her disability was itself the ground of, or the reason for, the treatment complained of …
23. That conclusion by itself means that the claim of direct discrimination must fail, since the treatment complained of would not have been done on the ground of the Appellant's disability."
- These cases highlight the legally permissible distinction between reasons for impugned treatment that are related to disability, and reasons involving the disability itself as the ground or reason for the impugned treatment. As Elias LJ said in JP Morgan at :
"… it ought not, in most cases at least, to be too difficult for an employer to discharge the burden of showing that the disability itself, as opposed to the consequences to which it gave rise, was a matter of no consequence to them and did not influence their decision."
In Islington LBC v Ladele  ICR 387 the same distinction was drawn in a religion or belief context: see paragraphs 87 to 90 in particular.
- Although he now accepts as a matter of law that this is a permissible distinction to draw in an appropriate case, the Special Advocate contends that the Employment Tribunal's approach in the Claimant's case was flawed. In light of the evidence and findings of fact made, he submits that both the disability and the religion or beliefs themselves were a reason (though not the only reason) for the treatment in this case, and accordingly, direct discrimination was established. He contends that the real question in this case was justification, which the Employment Tribunal did not ultimately determine.
- Against that background I shall address the five issues raised by this appeal in turn below.
- The Tribunal referred at paragraph 62 of the Open Reasons to the following statement which appeared on the GCHQ careers website:
"It is unlikely we will consider you for a position in GCHQ if you …
• Have ever suffered bipolar disorder or a psychotic illness …"
The Claimant's argument that this amounted to a blanket ban was rejected by the Tribunal. But having noted the alternative submission made by the Special Advocate, the Special Advocate submits that the Tribunal wholly failed to deal with the alternative argument.
- He contends that it was unnecessary for the Claimant to show that there was a blanket ban in order to determine less favourable treatment; he needed only to establish that the policy led to a less favourable consideration of his application. His argument is that since those with a history of psychotic illness were unlikely to be considered suitable for employment, even if there was a theoretical possibility of such a candidate being considered, it nevertheless followed that a candidate in these circumstances would be treated less favourably than one who had no history of psychotic illness at all. In other words, the policy itself led to a less favourable consideration of the Claimant's application but the Tribunal simply failed to grapple with this issue. Furthermore, he submits that this error infects the Tribunal's reasoning in relation to the other detriments considered because, if the policy played a role in the Respondent's approach to the Claimant's application, it is properly to be treated as a reason for less favourable treatment in all of the decisions that followed and, in particular, in relation to the initial refusal of employment and the medical assessment that followed that refusal.
- Although I accept that the Tribunal's decision could and should have been clearer so far as this issue is concerned, I do not accept that the Tribunal fell into error as has been argued here. Read fairly and as a whole, I am satisfied that the Tribunal had this policy well in mind and dealt with the substance of the point contended for by the Special Advocate. This is particularly so in circumstances where he accepts that the policy inevitably forms part of the background to the Respondent's decisions that were taken in relation to other detriments.
- The two detriments where the policy could be relevant (as the Special Advocate accepts) are the initial refusal of employment in January 2009, and the medical assessments of Dr L and Dr M in June 2009. In relation to the first, the Tribunal made clear findings that the Claimant was offered employment with GCHQ, subject to vetting, and that, although he subsequently identified a history of psychotic illness, there was no evidence of any automatic rejection of his application by reference to the policy or otherwise once his psychotic illness had been identified. Nor is there any finding to support the argument that the fact of a past disability led to any less favourable consideration of his application. Rather, the Tribunal implicitly found that Dr L, who is an experienced clinical and forensic psychologist, gave careful and proper consideration to his application, albeit without seeing him, but by reference to the case papers. Her initial decision to reject his application was, the Tribunal found, "because of security concerns arising out of Dr L's report. The reason was the concerns and not the disability itself …" (paragraph 66 of the Open Reasons and paragraph 70 the Closed Reasons). Although not referred to by the Tribunal, Dr L has specific expertise in personality disorder and risk assessment, developed over many years of clinical and research work focusing on risks posed by individuals with severe mental health problems. Further, at paragraph 33 of Dr L's witness statement, she gave examples of cases, including where an individual had been employed with a history of psychosis, thus contradicting the suggestion that the Respondent would refuse to recruit somebody with such a past disability.
- So far as the requirement to undergo medical assessments is concerned, the Tribunal's findings indicate that the requirement to undergo medical assessments as part of the recruitment process was notified to the Claimant before any history of psychosis had been identified. Moreover, the Tribunal found that there was no evidence that the medical assessments were undertaken on the grounds of the Claimant's past disability (see paragraph 68 of the Open Reasons and paragraph 72 of the Closed Reasons). In fact, Dr M, who is an Occupational Health physician, far from being negatively influenced by the Claimant's past disability, concluded that he was fit for employment.
- Before it dealt with these particular alleged detriments, the Tribunal said expressly that it had considered each detriment "both in turn and collectively" (paragraph 60 of the Open Reasons and paragraph 62 of the Closed Reasons). There is no reason to doubt that this was the Tribunal's approach as is borne out by its findings and conclusions summarised above. The Tribunal had recorded the Special Advocate's alternative argument in relation to the GCHQ policy and again there is no reason to doubt that this argument was considered. Finally, it seems to me that the Tribunal in finding that there was no blanket ban so that the policy did not "of itself" amount to direct discrimination was recognising the additional argument of the Special Advocate at paragraph 63 of the Open Reasons.
- The second ground of appeal concerns the reason for refusal. Whilst the Special Advocate now accepts that the Tribunal was as a matter of law entitled to draw a distinction between the Claimant's past disability and matters consequent on disability, he submits that the findings of fact made by the Tribunal did not support the distinction. He points to findings in both the Open and Closed Reasons where the Tribunal held that the refusal was because of security concerns and not the disability itself, and submits that the "concerns" were (at least in part) that the Claimant might be suffering from mental illness. Accordingly, while other concerns were identified, it was the fact of the diagnosis of psychosis with a risk of further psychotic episodes that was relied on as part of those concerns. He submits that the Tribunal should have concluded on these facts that the psychotic illness was a more than trivial feature of the Respondent's reasoning, so that less favourable treatment was established and the Tribunal should have moved on to consider the question of justification.
- For the reasons that follow, I do not accept that the Tribunal fell into error here.
- First, it is clear that the Tribunal had in mind the correct legal test to be applied. Having set out at paragraph 57 Open Reasons the relevant provisions of the DDA, at paragraph 58 the Tribunal made clear that the essential enquiry in this case was to identify the reason why the Respondent acted as it did, recognising that there may be more than one reason for impugned treatment and that in many cases a focus on the reason for the treatment rather than on constructing a hypothetical comparator is the best approach.
- Secondly, the Tribunal's factual findings read as a whole provide ample evidence to support the conclusions reached that, in relation both to the initial refusal following the first report of Dr L (paragraph 66 of the Open Reasons) and the subsequent refusal (paragraph 71 of the Open Reasons) it was not the Claimant's past disability itself that led to the refusal but the risks to national security that he might pose in future in the high security work environment of GCHQ. Thus it accepted that a distinction was, as a matter of fact, drawn by the Respondent between the disability suffered by the Claimant in the past and the security risk he would pose in the future as an employee of GCHQ. While the security risk posed by the Claimant was considered to be in part related to or consequent upon his past disability, that is not the same thing as saying that his disability was itself the ground of, or the reason for, the treatment complained of by the Respondent, as the Tribunal found.
- The relevant findings of fact that supported this conclusion are primarily to be found in the Closed Reasons. So far as the Open Reasons are concerned:
(i) In relation to the initial refusal, at paragraph 28 the Tribunal set out the gist of Dr L's report and recommendations including her conclusion that the Claimant was "vulnerable to experiencing psychotic symptoms which could result in behaviours which would have implications for the risk to the organisation" and was "vulnerable to developing anxiety symptoms which might render him unavailable for work for extended periods" and that he demonstrated a lack of insight into those problems.
(ii) At paragraph 66 the Tribunal concluded that "the reason for the initial refusal was because of security concerns arising out of Dr L's report. The reason was the concerns and not the disability itself; and therefore the initial refusal cannot amount to direct discrimination."
(iii) At paragraph 68 the Tribunal concluded that there was no evidence "that the medical assessments in the context of the circumstances were on the grounds of [the Claimant's] past disability".
(iv) At paragraph 48 in relation to the final refusal, the Tribunal recorded the Respondent's evidence that Dr M had assessed the Claimant as medically fit for work but that he had thereafter been refused security clearance following a comprehensive review of his personal circumstances that gave rise to several concerns.
(v) At paragraph 71 the Tribunal held that it was "satisfied that the reasons for refusing DV were not on the grounds of the disability, but for a number of significant factors, only one of which related to mental health" (emphasis added).
(vi) At paragraph 72 the Tribunal said:
"Having considered all five detriments, there is no evidence that in relation to these matters, Mr Storey was less favourably treated on the grounds of his past disability and in those circumstances, the unanimous judgment of the tribunal (is) that the claim of direct disability discrimination fails."
- These findings and conclusions reflect an acceptance of the distinction drawn as a matter of fact. The conclusions are not surprising in the context of a process designed to consider whether the highest level of security clearance should be accorded. As Miss Grange submits, the DV exercise was aimed entirely at identifying the risks to national security the Claimant might pose as a GCHQ employee. Accordingly, just as the bank in JP Morgan was focused on performance above all and was likely to be indifferent to any disability (see paragraph 23 of JP Morgan) so the evidence here demonstrated that GCHQ was focused on security and the protection of its assets and the general public. Applicants for positions such as that applied for by the Claimant at GCHQ must have DV clearance for frequent and uncontrolled access to highly secret assets or material. In those circumstances, that there must be complete confidence in those working within such sensitive posts, given the threats posed by terrorism and the consequences of a breach of security, is likely to be easily established or even self-evident.
- The Special Advocate submits that the Respondent is drawing a false distinction between security concerns and disability here. The real distinction he submits is security concerns on grounds of disability and security concerns that are disability related. The former is prohibited subject to justification. He submits that to address the Claimant's case it is necessary to answer the question whether the disability itself in the Claimant's case posed a security concern and that question was not answered by the Tribunal.
- I do not accept that a false distinction has been drawn here. There is no reason in principle why security concerns cannot be separate and distinct from the disability itself, provided there are findings of fact supported by evidence that demonstrate that such a distinction was drawn by the Respondent and accepted by the Tribunal. The real question in the context of the direct disability discrimination claim is whether the Respondent properly treated the security concerns as separable from the Claimant's past disability, and whether it was the security concerns and not his past disability that were the reasons for refusing the Claimant's application for employment.
- The evidence and findings of fact made by the Tribunal relevant to this question are principally in the paragraphs that follow in the Closed Reasons: [Redacted].
- There was evidence accepted by the Tribunal as supporting the distinction, and the findings read as a whole demonstrate that the distinction was properly drawn and the Tribunal did not make the error alleged by the Special Advocate.
- Whilst accepting that his argument is weaker in relation to this ground, nevertheless, the Special Advocate submits that the same error arises in relation to the Tribunal's conclusions on the direct religious discrimination complaint. I disagree. The evidence was clear in this regard. The fact that the Claimant is religious (a devout Christian) and had religious beliefs was not an issue in itself for the Respondent.
- 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 judgement in the workplace, which gave rise to national security concerns in the circumstances and were of concern to the Respondent.
- 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.
- It is trite law that the reason for less favourable treatment in a discrimination case need not be the only reason, provided that it is a reason which is significant. The Tribunal plainly had this in mind and expressly referred to it at paragraph 58 of the Open Reasons.
- However, the Special Advocate contends that both in relation to direct disability discrimination and direct religious discrimination the Tribunal overlooked this principle and failed to recognise that there could be (and was) more than one reason for the impugned treatment here, so that both grounds should have been found established. The Special Advocate relies on paragraph 71 of the Open Reasons in relation to the disability argument and paragraph 104 of the Closed Reasons in relation to the argument based on religious discrimination.
- So far as paragraph 71 of the Open Reasons is concerned, the Tribunal held that:
"The reasons for refusing DV were not on the grounds of the disability, but for a number of significant factors, only one of which related to mental health."
- In using the phrase "related to mental health", I am satisfied that 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.
- In conclusion, the Special Advocate has failed to establish the errors of law relied on in the grounds of appeal. The Tribunal's decision properly applied the law and reached permissible conclusions on the evidence and factual findings it made. It was adequately reasoned.
- The appeal accordingly fails and is dismissed.
Published: 23/10/2015 09:27