R Frewer v Google UK Limited & Ors

An employment tribunal considering disclosure, redaction or anonymity must identify the specific procedural power being exercised and proceed in sequence. Material should first be assessed for whether it is likely to support or adversely affect a party’s case, and whether it is necessary for a fair disposal. Material failing either requirement should not be before the tribunal.

Only then should a restriction under Rule 50 of the Employment Tribunal Rules of Procedure 2013 be considered. Any derogation from open justice requires proper evidence of necessity and full weight to freedom of expression. The tribunal must also recognise the public interest in naming persons who played a significant role in the matters before it.

The claimant, formerly the first respondent’s Commercial Director for Travel EMEA, was summarily dismissed after allegations that he sexually harassed colleagues at a dinner. He brought claims including unfair dismissal, discrimination, and detriment and dismissal for protected disclosures. His protected-disclosure case alleged that the first respondent favoured two major travel-industry clients in an anti-competitive way.

At a case-management hearing, the first respondent sought to anonymise all its clients and to redact commercially sensitive and irrelevant information from documents. Employment Judge Grewal made the requested orders on paper on 18 June 2021. The claimant appealed, contending that the tribunal lacked power to make the orders on the basis given, had underestimated prejudice, and had reversed the burden of justifying redactions.

The central issue was whether the tribunal had lawfully ordered blanket client anonymity and redaction consistently with disclosure principles and open justice.

1. Appeal allowed and matter remitted. The orders for blanket anonymisation of the first respondent’s clients and for redaction of commercially sensitive and irrelevant information could not stand. The tribunal had not addressed the application through the necessary structured analysis or identified sufficiently the applicable rule or principle.

2. Rule 29 of the Employment Tribunal Rules of Procedure 2013 is a residual case-management power. Where a specific rule governs the subject matter, that rule should ordinarily be used, because it defines the scope and limits of the power. Rule 29 may be used where no specific rule applies, or where a wider power is necessary for a proper reason.

3. Redaction is informed by disclosure principles. The tribunal must ask first whether disputed material is likely to support or adversely affect a party’s case. It must then ask whether the material is necessary for the fair disposal of the proceedings. Material that does not satisfy both requirements should not be before the tribunal. Confidentiality alone does not justify withholding or redacting material that is otherwise disclosable and necessary.

4. Only if material passes those disclosure stages should the tribunal consider a restriction under Rule 50. The applicant must establish by proper evidence that the restriction is necessary. The tribunal must give full weight to open justice and freedom of expression, including the public interest in the press being able to name persons significantly involved in the matters in issue.

5. The tribunal erred by treating the clients’ identities as irrelevant to the issues without considering the distinct public interest in names being reported. There was a strong argument that the public had a legitimate interest in knowing the identities of the two clients allegedly given an anti-competitive advantage. Commercial sensitivity must also be distinguished from information subject to a legal obligation of confidence.

6. The applications were remitted for fresh, likely oral, determination after the parties had narrowed the disputed issues. The tribunal was not bound to anonymise any client, although genuine commercial confidentiality might justify an order in an appropriate case.

• Employment Appeal Tribunal: allowed the claimant’s appeal, set aside the anonymity and redaction orders, and remitted the applications for fresh determination: [2022] EAT 34.
• Employment Tribunal: on 18 June 2021, Employment Judge Grewal ordered anonymisation of all clients of the first respondent in material available to the public and permitted redaction of commercially sensitive and irrelevant information. The claimant’s application to revoke the redaction order was refused on 30 July 2021.