JK v LM: EAT upholds deposit order in national security vetting discrimination claim

The Employment Appeal Tribunal has dismissed an appeal and cross-appeal over a preliminary ruling in a nationality discrimination claim, holding that an employment judge could take account of an independent vetting panel's findings when assessing a national security defence.

In JK v LM [2026] EAT 144, Mr Justice Mansfield heard the appeal in private on 4 June 2026, with the parties anonymised. His open judgement, handed down on 21 September, carries no confidential annex. Details were omitted at the claimant's request to protect anonymity. Tom Kirk appeared pro bono through Advocate for the claimant, and Claire Palmer, instructed by the Government Legal Department, for the respondent.

The claimant, a foreign national, was employed by a contractor supplying services to the respondent. Clearance that would have allowed him to undertake different work was refused, though he remained in post. He alleged direct and indirect discrimination on grounds of nationality and national origin, arguing that the reasons for refusal had shifted through ten formulations.

After the claim was issued, the Security Vetting Appeals Panel, an independent advisory body chaired by a senior retired judge, recommended in a 51-page decision that refusal be maintained on national security grounds. It also expressed the view that, if the refusal was discriminatory, it was proportionate.

At a preliminary hearing, Employment Judge Brown refused to strike out the claims. She noted that it was unclear whether the panel had applied the shifting burden of proof, the test for indirect discrimination or the proportionality assessment required by Hardy & Hansons plc v Lax. She nonetheless made a deposit order, finding little reasonable prospect of success. The panel had reviewed all the material, and because the claimant had not been dismissed, any discriminatory effect required less justification.

The respondent cross-appealed, arguing that the judge had not addressed its standalone submission under section 192 of the Equality Act 2010, which protects proportionate acts done to safeguard national security. Mansfield J rejected that reading. Read as a whole, the short reasons showed that the judge had assessed the defence and found it not so strong as to warrant strike out but strong enough to justify a deposit.

The claimant's first ground was that the judge had outsourced her assessment to the panel. Mansfield J disagreed. She had recognised that a tribunal would reach its own conclusion, and the question was how likely it was to differ from a specialist body on proportionality. Proportionality being objective, the issue was whether refusal was justified, however the reasons had shifted. The judge had weighed the panel's conclusions on national security, within its expertise, against the minor effect on a claimant who was restricted in the work he could do rather than dismissed.

The second ground was that it was illogical to rely on the panel's findings after doubting whether it had applied a Hardy & Hansons style test. That also failed. The judge would have had her doubts in mind when considering the deposit. Even if the panel had applied a different test, it was open to her to have regard to its factual material and to the views of a specialist body. The decision under challenge was binary, was made by someone other than the claimant's employer and did not affect his employment. National security reasons were bound to carry significant weight, and a compliant proportionality assessment was unlikely to be wide-ranging.

Mansfield J described the law on strike out and deposit orders as settled, applying Cox v Adecco Group and noting that the "little reasonable prospect" threshold still requires a proper basis for doubt. Both the appeal and cross-appeal were dismissed.