The Home Secretary v Parr (PRACTICE AND PROCEDURE) (Rev 1)

An Employment Tribunal may reconsider a provisional privacy order at the full merits hearing where a material change of circumstances makes reconsideration necessary in the interests of justice. Under Rule 29, that power is not confined to cases where a party lacked an opportunity to make representations.

The availability of the complete hearing evidence, together with material authority on open justice not considered when the original order was made, may amount to such a change. A Rule 50 derogation from open justice must be no wider than reasonably necessary. Confidential salary negotiations do not, without a demonstrated and weighty need for protection, justify withholding evidence central to the public understanding of discrimination and equal-pay proceedings.

The claimant, an Inspector of Constabulary, brought equal-pay, sex-discrimination and race-discrimination claims against the Home Secretary. His comparator was another Inspector whose salary negotiations had resulted in a higher salary.

At a preliminary hearing, an Employment Judge made a Rule 50 order requiring evidence and submissions about the comparator’s appointment negotiations to be heard in private. The order expressly stated that it might be reviewed by the full Tribunal at the final hearing.

After disclosure and exchange of final witness statements, the full Employment Tribunal revoked the privacy order. The Home Secretary appealed, contending that the Tribunal lacked power to review the order, had misapplied Rule 29, and had erred in its assessment of confidentiality and open justice.

1. Appeal dismissed. The full Employment Tribunal was entitled to revoke the earlier Rule 50 order.

2. The natural and unqualified meaning of the first Tribunal’s statement that its order might be reviewed by the full Tribunal at the full hearing was that the order was provisional. It was not confined to the narrower mechanism in Rule 50(4). Nevertheless, the later Tribunal could exercise its freedom to vary or revoke the order only where a change in circumstances warranted reconsideration, consistently with finality and certainty.

3. Rule 29 permits an earlier case-management order to be varied, suspended or set aside where necessary in the interests of justice. The express example of a party lacking a reasonable opportunity to make representations is not exhaustive. The complete final evidence, bundles and witness statements were material new circumstances. They enabled the full Tribunal to assess whether any derogation from open justice was justified, rather than deciding the issue on speculation and apprehension.

4. It was also material that the claimant, formerly unrepresented, was represented at the full hearing and that the Tribunal had been taken to significant open-justice authorities which the first Tribunal had not considered. This did not create a general right to reargue a matter under Rule 29 merely by finding further authority or instructing lawyers. On the particular facts, the one-sided presentation of authority and the expressly contemplated review made reconsideration necessary in the interests of justice.

5. On the merits, the full Tribunal correctly balanced open justice against the comparator’s Article 8 interests. It accepted that the salary negotiations were confidential and that the comparator’s interests deserved weight. But the information was central to the alleged discriminatory explanation for the pay difference, and excluding it would prevent the public from understanding the case and any decision. The asserted reputational harm was unsupported by particulars or further evidence. The Tribunal was entitled to find that no Rule 50 protection was justified.

• Employment Appeal Tribunal: dismissed the Home Secretary’s appeal and upheld the full Employment Tribunal’s revocation of the Rule 50 privacy order.
• Employment Tribunal: the preliminary hearing made a privacy order under Rule 50, expressly subject to review at the full hearing. The full Tribunal later revoked that order in its entirety.