Clifford v Millicom Services UK Ltd & Ors

Factual and Procedural Background

This appeal concerns an application before an Employment Tribunal ("ET") to restrict open justice by prohibiting public disclosure of information used in the proceedings. The application was based on arguments that disclosure would be contrary to the interests of justice, endanger personal safety, infringe human rights, and breach contractual confidentiality obligations.

The underlying dispute arose from claims brought by the Appellant, a former global investigations manager employed by Company A, who was dismissed on grounds of redundancy. The Appellant alleged unfair dismissal, detriment due to whistleblowing, and disability discrimination against Company A and three individual respondents collectively referred to as the Company A parties.

The Appellant's key allegation was that he was subjected to detriment and dismissal because of whistleblowing related to investigations revealing that staff of a Company A subsidiary in a foreign country had tracked a prominent customer’s mobile phone and disclosed information to a government agency. This customer later suffered a serious criminal offence. The Appellant’s claim documents detailed these matters, but the identities and specifics were not public.

The Company A parties applied under Rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 for an order anonymising certain information and prohibiting public disclosure relating to the customer, the attack, and the alleged link to Company A and its staff. They argued that such an order was necessary in the interests of justice, to protect Convention rights under Articles 2, 3, 5, 6 and 8, and to uphold contractual confidentiality obligations.

The Employment Judge dismissed the application, finding no jurisdiction to protect the rights of individuals outside the Convention states, no objective evidence of risk to justify derogations under Articles 3, 5 and 8, and that the subjective fears and contractual confidentiality did not outweigh the open justice principle. The Company A parties obtained permission to appeal.

The Employment Appeal Tribunal ("EAT") partially allowed the appeal, finding errors in the Employment Judge’s analysis, particularly regarding the interests of justice, Article 8 engagement, balancing exercises, and public interest in confidentiality. The EAT remitted the application for redetermination by a differently constituted ET with directions on the issues to be considered.

The Appellant appealed to the Court of Appeal, challenging the EAT's interference with the ET’s conclusions on Article 8 engagement and the balancing exercise on confidentiality. The Company A parties cross-appealed, arguing that the EAT should have found the fears objectively justified and Article 8 engaged, supporting a wider remit.

Legal Issues Presented

1. How should an Employment Tribunal assess an application under Rule 50 to restrict open justice by prohibiting public disclosure of information used in proceedings?
2. Whether derogations from open justice are justified in the interests of justice, including risks to safety and fairness in proceedings.
3. Whether the Convention rights of individuals, particularly under Articles 2, 3, 5, 6 and 8 of the European Convention on Human Rights, are engaged and require protection.
4. Whether contractual duties of confidentiality justify restrictions on disclosure under Rule 50.
5. Whether the Employment Judge erred in law by failing to properly apply the common law open justice principle, misapplying the test for objective evidence of risk, and improperly excluding subjective fears and willingness to give evidence as relevant factors.

Arguments of the Parties

Appellant's Arguments

• The Employment Judge’s conclusion that Article 8 was not engaged was correct and the EAT erred in ordering a balancing exercise on this point.
• The interests of justice ground is not distinct from the Convention rights analysis; if Article 8 is not engaged, no further balancing is necessary.
• The Employment Judge was correct to exclude the subjective fears and the willingness of a witness or party to give evidence as irrelevant to the Rule 50 application.
• The Employment Judge did not err in handling the confidentiality clause and the balancing exercise related thereto.

Company A Parties' Arguments

• The interests of justice is a distinct and separate ground for derogations from open justice, independent of Convention rights.
• The Employment Judge wrongly dismissed the subjective fears of the witnesses and the impact on the willingness to participate in proceedings as legally irrelevant.
• The evidence of risk to safety and security was objectively supported and sufficient to engage Article 8 rights.
• The contractual duty of confidentiality and the public interest in protecting confidential information justify restrictions on disclosure.
• The EAT was correct to remit the application for redetermination on all three limbs: interests of justice, Article 8 rights, and confidentiality.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by affirming the fundamental principle of open justice, subject only to limited exceptions justified by necessity in the interests of justice, protection of Convention rights, or confidentiality under Rule 50. It emphasized that the common law principle of open justice remains the starting point, with Rule 50 reflecting and codifying this principle rather than supplanting it.

The Court found that the Employment Judge erred by conflating the common law "interests of justice" limb with the Convention rights analysis, failing to give separate consideration to the common law exception. The Court held that the common law exception authorizes withholding information if necessary to prevent justice from being rendered impracticable, which may include protecting the safety and security of witnesses or related persons, even if they are outside the jurisdiction or lack Convention protection.

The Court identified five principal flaws in the Employment Judge’s approach: (1) failure to consider the common law interests of justice separately; (2) misapplication of the "objective evidence" requirement, wrongly dismissing relevant and reasoned evidence as speculative; (3) exclusion of subjective fears and willingness to give evidence as legally irrelevant; (4) failure to conduct any balancing exercise under the common law; and (5) ignoring the impact of the refusal of derogations on the ability of the parties to participate in the proceedings.

Applying established authorities, the Court held that subjective fears of a party or witness, if reasonably founded, are relevant to the balancing exercise. The Court also emphasized that the test for risk involves assessing a real and immediate risk of harm, which can be based on reasoned predictions rather than proof of probability. The evidence presented by the Company A parties, including expert and firsthand experience, constituted objective evidence sufficient to support the fears raised.

Regarding the protection of Convention rights, the Court noted that the foreign employees outside the jurisdiction do not benefit from Convention protections but that this does not preclude the Court from protecting the administration of justice. The Court accepted that Article 8 rights of the individual respondent were engaged, and that the Employment Judge erred in dismissing this without a balancing exercise.

On confidentiality, the Court found that the Employment Judge misdirected herself by failing to consider whether, in all the circumstances, it was in the public interest to breach the contractual duty of confidence. The Court emphasized that not all whistleblowing claims involve confidential information warranting restriction and that a fact-specific balancing test is necessary.

Overall, the Court agreed with the Employment Appeal Tribunal that the application must be remitted for redetermination by a differently constituted Employment Tribunal, directing it to apply the correct legal tests and undertake the requisite balancing exercises with full regard to the interests of justice, Convention rights, and confidentiality.

Holding and Implications

The Court DISMISSED the Appellant’s appeal and ALLOWED the cross-appeal by the Company A parties.

The Court held that the Employment Judge erred in law by failing to properly apply the common law exception to open justice, misapplying the test for objective evidence of risk, excluding relevant subjective fears and willingness to participate, and misdirecting on the confidentiality issue. Consequently, the application under Rule 50 must be remitted for redetermination by a differently constituted Employment Tribunal in accordance with the principles set out by the Employment Appeal Tribunal and this Court.

The direct effect is that the Employment Tribunal will reconsider the application for derogations with a proper legal framework and undertake the necessary balancing exercises. No new precedent was established beyond clarification and reaffirmation of the existing principles governing restrictions on open justice in Employment Tribunal proceedings.