In a judgment of the Employment Appeal Tribunal handed down on 15th April 2026 ([2026] EAT 52) HHJ Tayler has ruled upon the correct interpretation and application of Section 56 of the Investigatory Powers Act 2016 (“IPA”) in an employment law context.
The ruling affirms the case advanced for the three employees by Philip Rule KC of No5 Chambers, instructed by Julia Furley and Raphael Prais of JFH Law.
In each case the National Crime Agency is the respondent employer. The legal question was whether the trial of claims brought by employees who, for the sake of the argument, may have worked with intercepted communications at the National Crime Agency could be heard in an OPEN (albeit private) hearing, or if Section 56 IPA required such cases to be conducted essentially entirely in a CLOSED hearing. Where a CLOSED proceeding is adopted it excludes the employee from presence and participation or access to the evidence to be heard, with only the limited assistance afforded by a Special Advocate’s instruction within those constraints.
The EAT has decided the following points:
- Interpretation of Section 56(1)(b) IPA: Section 56(1)(b) IPA should be interpreted in the employment law context to apply only to “particular interception-related conduct” rather than broadly prohibiting any mention of interception-related activities occurring [53]. This narrower interpretation ensures that the provision does not automatically mandate CLOSED hearings for all cases involving employees who worked with intercepted communications. Limiting Section 56(1)(b) IPA to “particular interception-related conduct” aligns with the purpose of the IPA, which is to protect sensitive information without imposing blanket exclusions that could infringe on employees’ rights [55].
- Balancing Competing Interests: The EAT recognised the need to balance national security interests, the principle of open justice, and employees’ Article 6 fair trial rights. The Judge noted that Employment Tribunals have a range of tools available to protect national security, such as holding hearings in private or excluding certain individuals, concealing identities, and keeping secret all or parts of the reasons for a determination, without resorting to mandatory CLOSED hearings [22]. The EAT noted that previously the discretionary CLOSED procedure has been held to be lawful because it allowed Employment Judges to balance national security concerns against open justice and fair trial rights [43].
- Proportionality and Fairness: The Judge applied the Section 3 Human Rights Act 1998 interpretative obligation, which requires legislation to be read in a way compatible with Convention rights unless it is impossible to do so. He concluded that the respondent National Crime Agency’s interpretation of Section 56(1)(b) IPA was overly broad and would result in disproportionate limitations on employees’ rights to a fair trial [52]-[53].
- Employment Tribunal’s Role: Employment Tribunals have the ability to decide whether CLOSED hearings are necessary based on the specific facts of each case. Tribunals must ensure that the degree of any intrusion on employees’ participation in hearings is proportionate and not greater than is justified by the objectives of Section 56 IPA. The respondent’s interpretation would have made CLOSED hearings mandatory in all cases involving interception-related conduct, which undermines the ET’s ability to balance competing interests and ensure fairness.
The consequence is that, in this context, section 56 IPA is to be read as:
“56 Exclusion of matters from legal proceedings etc.
(1) No evidence may be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings or Inquiries Act proceedings which (in any manner)—
(a) discloses, in circumstances from which its origin in interception-related
conduct may be inferred—
(i) any content of an intercepted communication, or
(ii) any secondary data obtained from a communication, or
(b) tends to suggest that any particular interception-related conduct has or may have occurred or may be going to occur.” [added word in bold]
As the Judge noted, this interpretation “goes with the grain of the IPA and is consistent with its purpose in preventing sensitive information getting into the public domain contrary to the interests of justice. It can only be assumed that the legislative intent behind Section 56 IPA was a proportionate protection of national security rather than a blanket exclusion of claimants from hearings which will only involve a broad consideration of their job role in circumstances that often will not pose a risk to national security” [55].
The judgment is a welcome step forward for access to justice for employees who sue an employer where the work at issue in the tribunal proceedings has involved interception of communications.
The judgment may be accessed here.
