On 12 December 2024, Employment Judge Baty refused the Force’s application to strike out and/or for deposit orders in respect of a claim from two members of police staff for unfair dismissal. The Claimants were dismissed following the removal of their management vetting (MV), which was a requirement for their roles (for the full judgment, click here). 

Background 

The robust vetting of police officers is a hot topic due to the focus on vetting failings in the Casey Review, The Angiolini Inquiry, 2022 HMICFRS report and the recent High Court decision in R on the application of Di Maria v Commissioner of Police of the Metropolis 2025 EWHC 275, in relation to police officers.

In response to these reports, the ‘vetting test’ in the College of Policing’s national guidance is being revised (the ‘Vetting Code of Practice’ was revised in July 2023, and it is currently consulting on a revised version of its ‘Authorised Professional Practice: Vetting’ document). Police forces have relied on this guidance to undertake a wholesale review of the vetting clearance of officers about whom ‘adverse information’ has come to light. If their vetting clearance is removed on the basis that the adverse information means they pose a risk to public safety and confidence, the officers have been dismissed on the grounds of ‘gross incompetence’ due to their lack of clearance.  

The facts of this case 

The Claimants were employed by the Force in civilian intelligence roles. It was a condition of their employment to hold MV. Furthermore, all individuals employed by the Force are required to hold recruitment vetting (RV). 

Following receipt of intelligence, the Claimants were subject to an investigation under the Force’s misconduct procedure, with notices of investigation being served on them in January 2022. Following a review, in May 2022, it was determined that all levels of the Claimants’ vetting should be permanently revoked. As a result of the vetting revocation, the Claimants could not be redeployed to any other roles within the Force. The Force dismissed the Claimants in July 2022.  

The decisions to revoke the Claimants’ vetting and to dismiss were made by the same entity, i.e. the Force. However, the Force’s position (accepted by the Claimants) is that the individual who decided to dismiss the Claimants did not know the reasons why their vetting had been revoked.

The Force applied to strike out the Claimants’ claims and/or for deposit orders on the basis that all the allegedly unfair aspects of the Claimants’ dismissals, including any consideration of section 98(4) elements of the test, were taken for the purposes of national security. The Force submitted that the Claimants had no reasonable prospect of persuading a Tribunal that its actions were taken for any other reason and, therefore, its defence under section 10(1) of the ETA must succeed, and the claims should be struck out in their entirety.

EJ Baty’s decision 

Considering vetting decisions 

There is no bar on the Tribunal investigating and considering the vetting process or the reasons why vetting was removed in the context of considering whether a dismissal was unfair, (or the context of considering what the reason for dismissal was). 

Reason for dismissal

Due to the uncertainty about the reason for dismissal, it cannot be said that there is no or little reasonable prospect of the reason for dismissal being anything other than national security. 

Section 98(4) – the test for reasonableness 

Without hearing all of the evidence, it was not possible to say whether the Claimants’ argument that their inability to challenge the decision to withdraw their vetting amounted to a breach of Article 6 of the ECHR had no or little reasonable prospect of success.  

The Force’s applications were, therefore, refused.

What to take away 

This judgment makes it clear that the Tribunal has jurisdiction to hear claims arising from vetting issues, including claims for unfair dismissal of police staff and discrimination for both officers and staff. This is a less costly and risky forum in which individuals can pursue claims, compared to the High Court proceedings for judicial review.  

If relying on national security issues as the reason for revoking vetting and any subsequent dismissal, this must be supported by evidence and be the clear reason for dismissal in order for s10(1) of the ETA to apply.  

This case makes clear that failing to permit staff to challenge the decision to withdraw their vetting could amount to a breach of Article 6 of the ECHR. Therefore, it is important forces thoroughly consider issues of due process when designing a ‘fair’ vetting review process. This should include (amongst other things) providing the individual with detailed, written notice of allegations or concerns and giving them an opportunity to respond, with evidence.   

We recommend that police forces audit all ongoing vetting reviews and decisions that have been made, with the benefit of specialist legal advice, to identify any cases that may be at risk of challenge (by way of Employment Tribunal,  judicial review or otherwise) and take the necessary steps to address any issues identified in order to minimise risk.

How Capsticks can help 

Capsticks advises police forces on all aspects of misconduct proceedings including severity assessments, disclosure and the preparation, and presentation of cases at Accelerated Misconduct Hearings, Misconduct hearings, and at the Police Appeals Tribunal. We also represent clients in judicial review proceedings against panel decisions.  

We are experts in advising police clients on interpreting and implementing officer terms and conditions contained within the Police Regulations, and supporting forces to manage the performance and attendance of officers and staff. We have significant experience in supporting employers to prevent discrimination and harassment, including drafting equality and diversity policies, codes of conduct and delivering training to employees at all levels. We also help organisations deal with any complaints that may arise by conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims. 

If you would like access to advice, and training or need further guidance on police misconduct and performance or judicial review, please contact Anna Semprini, or Paul McFarlane.