The Court of Appeal has held that an employment tribunal erred in refusing to grant an order to restrict the public disclosure or reporting of information in a whistle-blowing claim.
The common law principle of open justice means that employment tribunal proceedings should be administered in public and be fully reportable. Employment tribunals can derogate from this principle by making a privacy order which prevents or restricts the public disclosure of information, for example by ordering that a hearing is conducted in private or that the identity of witnesses or parties is protected by anonymisation.
This case concerned a Rule 50 privacy order (“Rule 50 order”). These can be made in three circumstances: i) where necessary in the interests of justice, ii) to protect the rights of any person under the European Convention of Human Rights and iii) to protect confidentiality.
When considering whether to make a privacy order, courts must give full weight to the principle of open justice and the right to freedom of expression under Article 10 of the Convention of Human Rights.
THE FACTS
Mr Clifford was employed by Millicom Services UK Ltd as a global investigations manager. His role was to conduct and oversee internal investigations into suspected wrongdoing. In 2017, he reported to Millicom that his investigations in a foreign country had revealed that staff of a Millicom subsidiary had tracked the mobile phones of a customer who was a prominent citizen in that country and that the staff had disclosed their findings to a government agency there. The prominent citizen had later been the victim of a very serious criminal offence.
In 2019, Mr Clifford was made redundant. He brought claims against Millicom and three fellow workers, claiming (among other things) that he had been automatically unfairly dismissed and suffered detriment as a whistle-blower because he had investigated these matters and reported them.
Millicom applied for a Rule 50 order prohibiting the public disclosure or reporting of the identity of the customer, the details of the attack, the alleged link between the attack and the Millicom company and its staff, or anything that was likely to lead to the identification of these things. Millicom argued that this was necessary in the interests of justice and/or to protect rights under the Convention of Human Rights and/or because Mr Clifford owed Millicom the duty of confidence and breach of this would not be justified in the public interest. Millicom’s Vice President of Legal (who had control over how Millicom deals with litigation) gave evidence that, if the Rule 50 order was not granted, he would not give evidence or permit Millicom to defend the case.
The employment tribunal did not grant the Rule 50 order. The case was appealed to the EAT and then to the Court of Appeal. The Court of Appeal decided that the evidence placed before the employment tribunal provided a sufficient objective basis for the safety fears expressed by Millicom and its employees, and both the employment tribunal and EAT had erred in deciding otherwise. The Court of Appeal ordered that the application for the privacy order be reconsidered by the employment tribunal.
Points of particular interest to employers are:
- It may be in the interests of justice to grant a privacy order to protect the life and security of individuals and to ensure that proceedings do not “risk life and limb”.
- This may extend to protecting the safety of individuals who are neither witnesses nor parties to the proceedings, even if they are outside the jurisdiction of the tribunal.
- The VP of Legal’s subjective fears about the safety of Millicom staff should have been taken into account by the tribunal, even if they were not supported by objective evidence.
- It would be legitimate to take into account the evidence that, without a privacy order, Millicom would not defend the claim.
- The Tribunal had failed to carry out a proper balancing exercise. Tribunals may also take into account whether the order relates to people who are not parties or witnesses, and the relevance of the information to the issues in dispute.
- Tribunals should bear in mind the harm that disclosure would cause and the extent to which the privacy order would compromise the principle of open justice.
- The Court of Appeal emphasised the importance of public interest in observing duties of confidence.
- The Tribunal had failed to address the question “whether in all the circumstances, it was in the public interest that the duty of confidence should be breached” by disclosure in the proceedings of confidential matters acquired in the course of Mr Clifford’s employment.
- The nature of the confidential information and the relationship of the parties are both relevant to the above question.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This case will be of particular interest to employers seeking privacy orders on the basis that information has been obtained in confidence, and we may see an increase in such applications. Confidentiality obligations in employment contracts are likely to be given more weight than non-contractual duties. In making such applications, employers must be able to demonstrate, and back up with evidence, why it is not in the public interest for the duty of confidence to be breached.
This case will also be interesting for employers who are concerned about the security of employees involved in tribunal proceedings. The decision that genuinely held fears about safety should be taken into account, even when the fears are subjective and not proved by objective evidence, may be particularly important to employers who are applying for privacy orders.
We do not yet know if the employment tribunal will grant the privacy order when the case is remitted to the employment tribunal. We will update you on any interesting developments.
Employers may also be interested in these articles on the principle of open justice:
