Unfair Dismissal and National security

Section 10 of the Employment Rights Act 1996 provides that the employment tribunal must dismiss a complaint of unfair dismissal if it is shown that the action complained of (ie dismissal) was taken for the purpose of safeguarding national security.

Mr B was a security guard with the BAA at one of its airport terminals. The Department for Transport informed BAA that it could not employ him on security grounds. BAA therefore dismissed him.

The employment tribunal held that the dismissal was for the purpose of national security, and therefore dismissed the claim.

The EAT (Burton P. presiding) held that the test is not so straightforward. It was incumbent on the tribunal to decide whether the employer acted reasonably in dismissing. The statute refers to "the action complained of", and the employer must establish that dismissal (contrasted with, for example, redeployment into another post) fell within the range of reasonable responses. Only if dismissal was a reasonable response will the tribunal be obliged to dismiss the unfair dismissal application (see paras. 38-40 of the decision).

B v BAA plc EAT 2005