Introduction

Clifford v Millicom Services UK Ltd & Ors ([2023] EWCA Civ 50) is a pivotal case adjudicated by the England and Wales Court of Appeal (Civil Division) on January 26, 2023. The case centers around an Employment Tribunal's (ET) application of Rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, which allows for restrictions on public disclosure of information in tribunal proceedings under specific circumstances. Mr. Clifford, the appellant, challenged his dismissal by Millicom on grounds including unfair dismissal and discrimination, asserting that his whistleblowing activities led to his detrimental treatment. Millicom sought to restrict the public disclosure of sensitive information related to the case, arguing that such disclosure would endanger personal safety, infringe on human rights, and breach contractual confidentiality obligations.

Summary of the Judgment

The Court of Appeal dismissed Mr. Clifford's appeal, upholding the decision to remit the case back to the Employment Tribunal for a re-determination. The core issue revolved around the ET's handling of Rule 50 applications, particularly the balancing between the principle of open justice and the necessity to protect sensitive information under specific circumstances. The Court found that the Employment Judge (EJ) had incorrectly intertwined common law principles with Convention rights without adequately addressing the separate considerations required under Rule 50. Additionally, the EJ's assessment of the evidence claiming potential risks due to public disclosure was deemed insufficiently objective, necessitating a more thorough fact-specific balancing exercise.

Analysis

Precedents Cited

The judgment extensively references key precedents that delineate the boundaries of open justice and the application of human rights within domestic proceedings:

• A v BBC [2014] UKSC 25: Emphasized that the principle of open justice remains paramount, but recognized the need to balance it with Convention rights.
• Khuja v Times Newspapers Ltd [2017] UKSC 49: Affirmed the inherent power of courts to withhold information to secure the proper administration of justice.
• In Re Officer L [2007] UKHL 36: Highlighted that common law protections can extend beyond constitutional rights, allowing for more nuanced considerations of witness protection.
• HRH the Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776: Stressed the significant public interest in maintaining confidentiality, especially regarding contractual duties of confidence.

These precedents collectively underscore the judiciary's role in balancing transparency with the protection of sensitive information and individual rights.

Legal Reasoning

The Court of Appeal critiqued the Employment Judge's (EJ) approach, noting several key missteps:

• Integration of Common Law and Convention Rights: The EJ failed to separately address the common law principle of open justice and the Convention rights, leading to a conflated and incomplete analysis.
• Objective Assessment of Risk: The EJ inadequately evaluated the evidence regarding potential risks from public disclosure, dismissing it as speculative without sufficient objective grounding.
• Fact-Specific Balancing: There was a lack of a detailed balancing exercise weighing the principle of open justice against the proposed derogations under Rule 50.
• Confidentiality Considerations: The EJ did not fully explore whether the duty of confidentiality outweighed the public interest in maintaining open proceedings.

The Court emphasized that Rule 50 does not expand or restrict common law principles but should operate within their established boundaries, ensuring that any derogation from open justice is justified through a meticulous, fact-specific balancing process.

Impact

This judgment has significant implications for future Employment Tribunal proceedings, particularly regarding:

• Application of Rule 50: Tribunals must conduct thorough, separate assessments of open justice and human rights concerns, ensuring that any restrictions on disclosure are meticulously justified.
• Objective Evidence Requirement: Courts will require solid, objective evidence to support claims of risk or harm that justify derogations from open justice.
• Balancing Act: There is a reinforced need for tribunals to engage in detailed balancing between transparency and confidentiality, respecting the foundational principle of open justice while accommodating genuine protections.
• Confidentiality Obligations: Employment tribunals must carefully consider contractual confidentiality clauses in the context of public interest, ensuring they do not unduly impede the principle of open justice.

Overall, the judgment reinforces the judiciary's commitment to maintaining open proceedings while allowing for necessary exceptions, provided they are robustly justified.

Complex Concepts Simplified

Rule 50 of the Employment Tribunals Regulations 2013

Rule 50 provides Employment Tribunals with the authority to restrict the public from accessing certain information during proceedings. Such restrictions can be made to protect the interests of justice, uphold individual human rights, or honor confidentiality obligations. Importantly, Rule 50 emphasizes that open justice is the default principle, and restrictions should only be applied in limited, justified circumstances.

Principle of Open Justice

The Principle of Open Justice mandates that court and tribunal proceedings should generally be conducted in public. This transparency ensures accountability, public confidence in the legal system, and the proper administration of justice. Exceptions to this principle are rare and must be justified through stringent criteria.

Balancing Test

The Balancing Test is a legal evaluation where competing interests are weighed against each other to determine the appropriate course of action. In the context of Rule 50, it involves balancing the need for transparency against the necessity to protect sensitive information or individual rights.

European Convention on Human Rights (ECHR) Articles:

• Article 6: Guarantees the right to a fair and public hearing.
• Article 8: Protects the right to respect for private and family life.
• Article 10: Ensures freedom of expression, including the right to receive and impart information.

Conclusion

The Clifford v Millicom Services UK Ltd & Ors [2023] judgment serves as a critical reminder of the judiciary's duty to uphold the principle of open justice while accommodating necessary exceptions through Rule 50. It underscores the importance of a meticulous, separate analysis of common law principles and human rights considerations, ensuring that any derogation from transparency is robustly justified with objective evidence and subject to a thorough balancing process. This case not only reaffirms established legal principles but also provides clear guidance on the application of Rule 50, enhancing the integrity and fairness of Employment Tribunal proceedings.