Michael Clifford v Millicom Services UK Limited & Ors.

An employment tribunal considering a restriction on open justice under Rule 50 must address the common law interests-of-justice ground separately from Convention rights. The common law may protect persons outside the Convention jurisdiction and may take account of objectively grounded risks, subjective fears and their effect on participation in proceedings.

The tribunal must balance the harm from disclosure against the extent and purpose of open justice, before checking the result against applicable Convention rights. Where contractual confidentiality applies, the question is whether, in all the circumstances, the public interest requires breach of confidence. That inquiry is fact-specific and includes the nature of the information, the relationship and the public interest in observing contractual duties of confidence.

The claimant brought Employment Tribunal proceedings alleging unfair dismissal, whistleblowing detriment and disability discrimination. The respondents sought restrictions under Rule 50 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. They contended that publicity about alleged events in a foreign country would endanger employees, prejudice the defence, interfere with Convention rights and disclose contractually confidential information.

The Employment Tribunal refused the application. The Employment Appeal Tribunal allowed the respondents’ appeal in part and ordered reconsideration by a differently constituted tribunal: [2022] EAT 74. The claimant appealed against that order and the respondents cross-appealed concerning the evidential basis for the alleged risks.

The central issues were how the interests-of-justice, Article 8 and confidentiality limbs of Rule 50 should be approached, and whether the evidence provided an objective basis for the respondents’ fears.

1. Disposition. The claimant’s appeal was dismissed and the respondents’ cross-appeal was allowed. The Rule 50 application was remitted for redetermination by a differently constituted Employment Tribunal in accordance with the judgments of the Employment Appeal Tribunal and the Court of Appeal.

2. The interests-of-justice limb of Rule 50 required separate consideration under domestic law. The Human Rights Act 1998 does not replace domestic statutory and common law rules. The common law principle of open justice remains the starting point, subject to the inherent power to withhold information where that is necessary for the administration of justice. Rule 50 reflects that principle while emphasising the weight to be given to open justice and freedom of expression.

3. The common law power may protect life and limb within or outside the jurisdiction. It may also protect non-participants where risks to them affect fairness to parties or witnesses, or the administration of justice more generally. Where life or limb is said to be at risk, the tribunal seeks evidence of a real and immediate risk. Evidence need not establish that harm will probably or certainly occur. Reasoned evidence explaining why disclosure would materially increase an existing risk can constitute objective evidence.

4. Outside cases where life and limb are shown to be at risk, the tribunal must balance relevant factors. These include the extent of the interference with open justice, the importance of the protected information to the case, the status of the affected person, the harm disclosure would cause, and the value of disclosure in advancing the purposes of open justice. Subjective fears may be relevant at common law. A stated intention to withhold evidence or abandon a claim or defence cannot suffice by itself, but it may be considered where it is genuine and has a reasonable foundation.

5. Article 8 required a two-stage analysis: first, whether public disclosure by the state in legal proceedings would interfere with Article 8 rights; secondly, if so, whether the interference would be justified under Article 8(2). Subjective fear of harm to a person or workplace colleagues was capable of being relevant. Any common law conclusion also had to be checked against applicable rights under Articles 6, 8 and 10.

6. For confidential information, the Rule 50 question was whether restriction was necessary to protect the information. The correct public-interest inquiry was whether, in all the circumstances, the duty of confidence should be breached. Relevant matters included the nature of the information and relationship, the public interest in observing duties of confidence, and the potentially greater weight of an express contractual obligation. The Employment Tribunal’s contrary approach was a legal misdirection.

Warby LJ delivered the judgment. Elisabeth Laing and Lewis LJJ agreed.

1. Court of Appeal (Civil Division): The claimant’s appeal was dismissed and the respondents’ cross-appeal was allowed: [2023] EWCA Civ 50. The Rule 50 application remained remitted for redetermination, subject to the Court of Appeal’s correction concerning the objective evidential basis for the alleged risks.

2. Employment Appeal Tribunal: Eady P allowed the respondents’ appeal in part and ordered redetermination by a differently constituted Employment Tribunal: [2022] EAT 74.

3. Employment Tribunal: Employment Judge Henderson dismissed the respondents’ application for restrictions under Rule 50.