Open Justice in the Employment Tribunal
A recent Court of Appeal judgment has provided a useful insight into the scope of the principle that justice should be administered in public and be fully reportable.
Concern About Disclosure Being Made Public
The case of Clifford v Millicom Services UK Ltd resulted from the termination of Mr Clifford's employment in November 2019. Mr Clifford argued that he was not redundant, as his former employer had said, but that he had been subject to detriment and dismissed because he made protected disclosures. The disclosures themselves related to alleged unlawful activity of a subsidiary company abroad, which had apparently led to a serious crime being committed. Mr Clifford issued proceedings, claiming he was treated unfavourably and then dismissed because he reported the matter.
Millicom was concerned that if details of Mr Clifford's disclosure and other related details were made public, the safety and security of current and former staff would be put at risk. It applied to the Tribunal under rule 50 of the Employment Tribunal Rules of Procedure 2013. It sought an order prohibiting the public disclosure or reporting of this information.
What Was the Outcome of the Case?
The Tribunal dismissed Millicom's rule 50 application. It found that as the individuals at risk were outside the EU, they did not benefit from the ECHR. It also did not consider that the contractual duty owed by Mr Clifford to Millicom outweighed the principle of open justice. Following an appeal to the Employment Appeal Tribunal (EAT), the case went to the Court of Appeal.
The Court of Appeal has now held that the Tribunal approached the rule 50 application in the wrong way. Rule 50 identifies three grounds which may justify an order preventing or restricting the public disclosure of information where necessary in:
- the interests of justice
- in order to protect the rights of any person under the European Convention on Human Rights (ECHR)
- order to protect confidentiality
The Tribunal's mistake was to treat the ECHR limb as the only determining factor in the application. The Tribunal should have considered the other two limbs of rule 50. It also failed to consider whether the subjective fears expressed by managers at Millicom were enough to interfere with the Article 8 ECHR right to respect for private and family life. If so, there could have been a route to satisfying the second limb of rule 50 in any event.
The Court of Appeal agreed with the EAT that the application should be remitted to a new Tribunal.
What Can Employers Learn From This Judgment?
This case provides a useful summary of the grounds on which a Tribunal may be justified in granting an order to restrict or prohibit the reporting of information in a case. Each of the three limbs of rule 50 are distinct and should be considered separately. If you are the party seeking an order under rule 50, you should consider which limb or limbs of rule 50 apply to your application, and why.
