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Employment Appeal Tribunal Decision Highlights Tension Between Confidentiality and Freedom of Expression

on Friday, 01 April 2022.

The Employment Appeal Tribunal (EAT) decision of a recent case highlights the narrow circumstances in which the Tribunal is able to grant anonymisation orders in litigation.

Appealing the Decision to Anonymise Clients

In Frewer v Google UK Ltd, Mr Frewer was a Commercial Director at Google who was dismissed on 8 June 2020 for the alleged sexual harassment of two colleagues. Mr Frewer brought a claim for detriment and automatic unfair dismissal for having made protected disclosures.

Prior to the hearing, Google asked for the names of its clients to be anonymised in the hearing bundle and witness statements. The Employment Tribunal accepted this request, holding that the names of Google's clients must be anonymised and that "commercially sensitive and irrelevant" information must be redacted. Mr Frewer appealed the decision and the appeal was allowed.

What Is the Duty of Disclosure?

In Employment Tribunal litigation, all documents relevant to an issue in the claim which are in a party's possession, custody or control should be disclosed to the other party/parties in the case. The duty extends to disclosing material that is both helpful to the disclosing party's position, as well as material which may undermine it.

Some documents may contain a mix of information relevant to the case, and information that is not. If the irrelevant information is commercially or personally sensitive or confidential, it may be necessary to redact it. The Tribunal has the power to order irrelevant evidence to be excluded.

Does Confidentiality Take Precedent Over Freedom of Expression?

The EAT had to consider both the anonymisation order, and the redaction order granted by the Tribunal.

In respect of the anonymisation order, the EAT determined the Tribunal had not taken into account the right to freedom of expression under Article 10 of the European Convention on Human Rights, nor to cases demonstrating the importance of naming parties to legal proceedings. Even if it would technically be possible for a court to determine a case without parties being named, there is a public interest in hearings being conducted so the press can report the names of those involved. The fact that the names of the parties were irrelevant to the issues in this case was not enough to justify an anonymisation order.

In respect of the redaction order, the EAT held the Tribunal had failed to consider whether all the material disclosed was relevant and necessary for the case to be dealt with fairly. Some 3,000 documents had been disclosed and redacted. The EAT considered it unlikely that all 3,000 were actually disclosable as part of the proceedings. Any documents that were not technically disclosable could simply be excluded, rather than redacted. The Tribunal had failed to consider this.

The case has been remitted to the Tribunal. Google has not yet failed in its application, although the EAT has indicated that at least two of the disputed entities should be named.

What Can Employers Learn from this Case?

This case highlights that there may be a public interest in naming individuals and entities involved in employment litigation, even where this is not technically necessary in order for the Tribunal to determine the claim. The case also demonstrates the importance of carrying out a meaningful disclosure exercise in preparation for a hearing, in order to limit potentially irrelevant information that may be put before the Tribunal, and which may then become the subject of debate around anonymisation/redaction.


For advice on dealing with confidentiality or freedom of expression, please contact Helen Hughes in our Employment team on 07741 312352, or complete the form below.

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