Millicom Services UK Limited & Ors v Michael Clifford

An employment tribunal considering restrictions on disclosure under rule 50 must begin with open justice, but must conduct a fact-specific balancing exercise where the interests of justice, fair trial rights, article 8 rights, or contractual confidence are engaged.

Persons outside the territorial scope of the European Convention on Human Rights cannot obtain Convention-rights protection on that basis alone. Their safety may nevertheless be relevant if disclosure would impair the administration of justice. Subjective fears, even if not objectively verified to the high threshold required by articles 3 and 5, may be relevant to that assessment and to article 8.

Where information is subject to an express contractual duty of confidence, the tribunal must ask whether it is in the public interest for that duty to be breached. It must weigh that circumstance against open justice.

The claimant brought Employment Tribunal claims including unfair dismissal, protected-disclosure detriment, automatic unfair dismissal, and disability discrimination. He relied on an investigation concerning a Millicom subsidiary operating in a non-Convention state.

The respondents sought limited non-disclosure and reporting restrictions under rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. They relied on risks to employees, articles 3, 5, 6 and 8 of the European Convention on Human Rights, the interests of justice, and contractual confidentiality.

Employment Judge Henderson refused the application. The Employment Appeal Tribunal considered whether the tribunal had correctly assessed the territorial limit of Convention rights, the evidential threshold for risks under articles 3 and 5, the relevance of subjective fears and intended non-participation, and the contractual duty of confidence.

1. Appeal allowed in part. The Employment Tribunal correctly held that Convention rights could not be protected under rule 50 in respect of persons located outside the territory of Convention states. Section 6 of the Human Rights Act 1998 confers no additional power, and rule 50 does not extend Convention rights beyond their territorial ambit.

2. That conclusion did not determine whether a restriction was necessary in the interests of justice. The common law and article 6 required the tribunal to consider whether disclosure would prejudice the administration of justice. This could include genuine fears held by a party or witness about risks to non-participants abroad, although clear and cogent evidence of necessity was required and the absence of a direct interest made that burden harder to satisfy.

3. The tribunal was entitled to find that the evidence did not objectively verify a materially increased real and immediate risk sufficient to engage articles 3 or 5. Its conclusion was within the permissible range. The appeal on that issue was dismissed.

4. The tribunal nevertheless erred in treating the second respondent’s subjective fears and stated intention not to give evidence or permit the first respondent to defend as irrelevant. Those matters could affect the administration of justice. They could also engage article 8, which may encompass workplace relationships and fears for the safety of work colleagues. The tribunal was entitled to treat the evidence cautiously, but had to weigh it in a fact-specific balancing exercise alongside open justice, article 6 and article 10 interests, and the limited extent of the proposed restrictions.

5. Having found an express contractual duty of confidence, the tribunal also erred by failing to weigh it as a relevant circumstance. The correct question was not merely whether the respondents had a legitimate wish to preserve confidentiality, but whether it was in the public interest for the duty to be breached. The tribunal had to consider the public policy in favour of contractual confidence in the particular case.

The parties were invited to agree the form of order or state consequential positions in writing.

• Employment Appeal Tribunal: allowed the respondents’ appeal in part and held that the Employment Tribunal had erred in its interests-of-justice, articles 6 and 8, and confidentiality reasoning: [2022] EAT 74 .
• Employment Tribunal (London Central): Employment Judge Henderson refused the respondents’ rule 50 application on 23 October 2020. No citation was stated.