BUQ v HRE

An interim non-disclosure injunction affecting Articles 8, 10 and 6 must be justified by the statutory and Convention tests, and must go no further than necessary. The court should first consider whether the information engages a reasonable expectation of privacy, then identify the competing rights and carry out an intense, fact-sensitive proportionality assessment. Sexual information ordinarily attracts privacy protection, but that cannot be assumed where the alleged conduct is abusive or amounts to harassment. Where the information is intended for an Employment Tribunal, the tribunal’s own powers to regulate evidence and protect privacy are highly relevant. A separate injunction should not ordinarily obstruct a complainant’s access to the tribunal, particularly where the tribunal can deal with irrelevant or abusive material itself.

The claimant sought continuation of an interim injunction restraining the defendant, a former senior employee, from disclosing sexual information concerning the claimant and his wife. Bean J had granted the initial order on short notice and had continued anonymity and related protective measures.

The defendant accepted disclosure to employment lawyers but sought an express exception permitting him to include the information in any claim presented to the Employment Tribunal. The claimant proposed that any draft Form ET1 should first be submitted for agreement, with disputes returned to the High Court. The central issues were whether the claimant had a reasonable expectation of privacy, how the parties’ Convention rights should be balanced, whether the defendant’s access to the Employment Tribunal could be restrained, and whether the tribunal’s own procedures provided sufficient protection.

1. The injunction was continued with the defendant’s contested variation. The defendant was permitted to include the protected information in any claim presented to the Employment Tribunal, together with the other agreed variations.
2. Under the Human Rights Act 1998, the court had to act compatibly with Convention rights and take account of relevant Strasbourg jurisprudence. The claimant’s Article 8 rights, the defendant’s Articles 10 and 6 rights, and the rights of the claimant’s wife and children required consideration.
3. The court applied the sequence identified in Murray v Express Newspapers Plc [2009] Ch 481: whether the claimant had a reasonable expectation of privacy; what rights the defendant had; and how the competing rights should be weighed. The circumstances had to be assessed item by item and by reference to the proposed audience.
4. The balancing exercise followed Re S (A Child) (Identifications: Restrictions on Publication) [2005] 1 AC 593. Neither Article 8 nor Article 10 automatically prevailed. The court had to focus intensely on the specific rights claimed, consider the justification for restricting each right, and apply proportionality.
5. Although sexual activity ordinarily attracts a reasonable expectation of privacy, that could not be assumed where the alleged activity was abusive or amounted to sexual harassment. The fact that the parties were work colleagues was not determinative, but was relevant. A senior employee should recognise that apparent consent by a junior employee might be non-consensual submission, or might later be alleged to be so.
6. The court could not assume, on an interim application, that the employer would succeed in the proposed Employment Tribunal proceedings. Nor could it treat the claimant as representing his wife’s interests without evidence from her. The children’s interests were relevant but not determinative.
7. The court rejected any real risk that the legally represented defendant would abuse the Employment Tribunal process. Irrelevant material could be excluded, and the tribunal had powers to conduct hearings privately and make appropriate orders. Even if a real risk had existed, a High Court injunction preventing the defendant from presenting his claim in his chosen form would have been unnecessary and disproportionate.
8. Section 12 of the Human Rights Act 1998 required the court to be satisfied that the claimant was likely to establish at trial that publication should not be allowed. The general threshold was a sufficiently favourable, ordinarily more-likely-than-not prospect of success, subject to exceptional flexibility. That threshold was not met, and the injunction in the proposed form would in any event unjustifiably obstruct the defendant’s Article 6 and Article 10 right to commence proceedings.