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MOD race discrimination case to be held in public

Organisations such as the Ministry of Defence (MOD) and Foreign Office will no longer be able to automatically rely on national security arguments to ensure that employment tribunal cases are heard in private after a ruling by the Employment Appeals Tribunal.

The Equality and Human Rights Commission part funded the case in which a serving member of the armed forces has claimed he was subjected to discrimination and physical and verbal racial abuse from colleagues while serving in Afghanistan as a member of a specialist unit in 2007. He took action against his employer, the MOD.

The MOD, however, responded by making a successful application for the case to be heard in private, due to issues of national security. The claimant challenged this decision on the grounds that it disproportionately interfered with his right to a fair hearing, under Article 6 of the European Convention on Human Rights and the Human Rights Act 1998.

The Appeals Tribunal recommended that part of the hearing should be held in public but held that part will be held in private. Justice Underhill said that it was 'expedient' that any part of the hearing dealing with the issues in Afghanistan be heard in private as there was 'a real risk to operations carried out'. However, the part of the complaint dealing with the matters in the UK 'if it can be practically dealt with in public should be'. The Tribunal also held that how the armed forces handled complaints of discrimination should be in public.

Justice Underhill said that any party seeking to justify a closed hearing bears a 'heavy burden' to justify any restriction and that 'tribunals should not abdicate their responsibilities as soon as national security is invoked'.

John Wadham, Group Director, Legal at the Equality and Human Rights Commission said:

'This is a significant case with implications for future cases involving national security and, crucially, a person’s right to a fair and open hearing. The MOD can no longer assume that where matters of national security are involved, a hearing will automatically be held in private. In each case, the judge will have to balance the rights of people to have a fair hearing against applications for tribunal cases to be heard in private.'

'Given that we hope that part of this discrimination hearing will be held in public, it should serve as a powerful deterrent for any future acts of discrimination, as an employer knows that any of their or their employee’s actions could end up in the public domain.'

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