Refusing to employ Chinese and Russians in sensitive national security jobs is not discrimination because they might be spies, tribunal rules
Refusing to employ Chinese and Russians in sensitive national security jobs is not discrimination because they might be spies, a tribunal has ruled.
It is not discriminatory to stop people from nations that pose a threat to Britain taking up certain jobs in the defence sector due to the possibility of espionage, the judgement suggests.
The precautionary measure applies to potential job candidates from China, Russia, North Korea, and Iran - four nations currently viewed as threats by Western allies.
The new ruling comes after a Chinese scientist sued a British AI company with ties to the UK and US defence departments when she was not given a job due to security concerns.
Tianlin Xu applied for a £220,000 lead AI role at Binary AI Ltd but the software company's young tech boss Dr James Patrick-Evans had to reject her.
Dr Patrick-Evans' start-up uses AI to identify flaws in software used by Western governments to prevent state-backed hackers from the likes of China and Russia targeting them.
Dr Patrick-Evans, 32, was 'strongly advised against hiring a Chinese national' by top defence officials that he worked with, it was heard.
Chinese people - such as Miss Xu - would not get security clearance from governments in order to carry out the work, it was said.
Miss Xu tried to sue Binary AI Ltd on grounds of race discrimination, claiming it was 'racial stigma' and 'stereotyping'.
But the tribunal dismissed her claims after hearing evidence of the security concerns.
Employment Judge Richard Baty said in his judgement: 'It is obvious that software drives the modern world. It underpins our everyday lives and runs every sector of our state.
'It is in every mobile phone, television, in consumer goods, schools, hospitals, and critical national infrastructure and forms the backbone and the operations of UK government and UK defence.
'Therefore, it is paramount that the security and operational capability of the software that drives our everyday lives should remain intact and free from malicious hackers and state actors wanting to persuade political outcomes or obtain sensitive information.
'The UK government and its Western allies that form the five eyes alliance have been under constant attack by many of these malicious groups, mainly from state-backed hacking groups from countries such as North Korea, Russia, China and Iran.
'These hacking groups have tried to obtain a 'backdoor' or malicious remote access into software that forms the backbone of UK infrastructure such as 5G telecoms, NHS health networks, power plant controllers, and water infrastructure systems.
'It is therefore imperative that the security of the software that drives these systems is verified, controlled and secured.
'Backdoors' have a devastating impact on the security of UK sovereignty and economic well-being.
'They allow foreign states to spy on the most sensitive UK data and steal sensitive information and economic trade secrets. Detecting backdoors hidden in software is exceptionally difficult.'
Dr Patrick-Evans' company counts its primary customers as organisations within the UK and US defence community where 'strictest security concerns are essential'.
They operate at a 'top security clearance level and require extensive background checks and verifications' on people working within them, it was heard.
Judge Baty added: 'The threats come primarily from groups backed by states such as North Korea, Russia, China and Iran.
'That creates enormous challenges to anyone who is a national of any of these countries working in the industry.'
Binary AI had a contract with the Defence Science and Technology Laboratory - the top secret Porton Down lab - and the Ministry of Defence to develop AI that could identify hidden backdoors inside software.
The hearing in central London was told 'highly intelligent' Miss Xu applied for the lead AI role in September 2023.
Around the time, Dr Patrick-Evans asked contacts in the UK defence community about hiring a Chinese person for the role
'He was informed by top defence officials that a Chinese national could not work in this area due to national security constraints', the judgement said.
They told it would 'create all kinds of difficulties'.
One defence official told him: 'Unfortunately our position has been hardening on this in recent months and we are now unable to fund Chinese nationals for any NS-related work (no matter how long they've been resident).
'The work you're doing is of great interest to our community and is likely to get into quite sensitive territory, so I would strongly advise against hiring a Chinese national.'
Dr Patrick-Evans was impressed by Miss Xu but considered that she would not get necessary clearance.
She was also not favoured because she 'had no experience at all in this field and was not the best equipped candidate'.
The winning candidate was British, had already worked in the field, and had previously been given security clearance.
Dr Patrick-Evans told Miss Xu: 'Disappointingly I've come to the decision not to proceed with your application on the sole basis of your nationality.
'As a company, we work closely in sensitive areas with western governments and wish to continue to do so.
'We're simply not big enough of a company to ensure the separation and security controls needed to hire someone of your nationality at this stage.'
Judge Baty concluded that despite the 'clumsy' language of his message to Miss Xu, it was not discriminatory to reject her because the security issues had to be considered.
Judge Baty said: '[Binary AI] operates in a highly sensitive niche industry, whose end users are Western governments.
'Those end users set the rules on what they consider to be security requirements within the industry.
'A product is not viable if a company falls short of those requirements.'
Judge Baty added: 'I find that the fact that an individual is a Chinese national (or, indeed, a Russian national, North Korean national or Iranian national) did preclude that individual working in a role, such as the Lead AI role, which involved working closely on matters concerning national security.
'Finally, I find that that prohibition was a decision of customers, rather than [Binary AI] or Dr Patrick-Evans themselves.
'From this point on, therefore, I find that Dr Patrick-Evans believed that he would not be able to offer [her] the Lead AI role because he believed that, because she was a Chinese national, she would not be able to obtain the security clearance necessary to do that role.'
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