Michael Clifford v Millicom Services UK Limited & Ors.

This appeal concerns when an Employment Tribunal (ET) may restrict public reporting under rule 50 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ("Rule 50") and the common law principle of open justice. The Court of Appeal confirmed that the starting point is the domestic common law principle of open justice and that Rule 50's "interests of justice" limb should be applied consistently with that common law exception, subject to compatibility with Convention rights under the Human Rights Act 1998. The tribunal must consider three possible bases for derogation under Rule 50: (i) necessity in the interests of justice; (ii) protection of Convention rights (notably Articles 6 and 8); and (iii) protection of confidential information (section 10A Employment Tribunals Act 1996 and common law duties of confidence).

The court held that the Employment Judge erred by failing to consider the "interests of justice" limb as a distinct common law enquiry, by applying an incorrect or unduly restrictive test as to what constituted "objective" evidence of risk, and by refusing to take account of the respondents' stated willingness not to give evidence or to defend the case if derogations were not granted. The judge also misdirected herself on the proper public interest analysis when considering a contractual duty of confidence. The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal's (EAT) order remitting the matter for re-determination but allowed the respondents' cross‑appeal to the extent that the Employment Judge's finding on the objective basis of the risk was erroneous. The application was remitted to a differently constituted ET for reconsideration in accordance with the EAT and Court of Appeal's guidance.

Background and parties: The appellant, Michael Clifford, was employed by Millicom as global investigations manager and was dismissed in November 2019. He brought ET claims including unfair dismissal, detriment for protected disclosures (whistleblowing) and disability discrimination. The Millicom parties (the company and three individuals) applied under Rule 50 for orders prohibiting public disclosure of the identity of a customer, details of a serious criminal attack ("Event Y"), any alleged link between that attack and a Millicom subsidiary, and any material likely to lead to identification of those matters, proposing pseudonyms (eg "Person X", "Country Z").

Nature of the application and relief sought: The respondents sought derogations from open justice by anonymisation and restriction on public reporting, relying on: (i) the interests of justice; (ii) protection of Convention rights (Articles 2, 3, 5, 6 and 8 were pressed, though Article 2 was later abandoned); and (iii) contractual/confidentiality protections under clause 15 of the claimant's employment contract and section 10A of the Employment Tribunals Act 1996.

Procedural history: The ET (Employment Judge Henderson) dismissed the Rule 50 application on 23 October 2020, concluding there was insufficient objective evidence of a real and immediate risk that would engage Articles 2, 3 or 5; that subjective fears could not engage Article 8; that the judge should not take into account a party's stated willingness not to proceed; and that the contractual duty of confidence did not outweigh open justice. The Millicom parties obtained permission to appeal and the EAT (Eady P) on 11 May 2022 [2022] EAT 74 allowed the appeal in part, holding that the ET had erred by failing to treat the "interests of justice" limb as a distinct common law enquiry, by not considering whether the respondents' subjective fears could engage Article 8, by failing to conduct a proper fact‑specific balancing exercise, and by misapplying the public interest test in relation to confidentiality; the EAT remitted the application for re‑determination.

Issues before the Court of Appeal: The appellant argued the EAT should not have interfered with the ET's finding that Article 8 was not engaged and that no further balancing was required on confidentiality. The Millicom parties argued that the interests of justice is a discrete ground and that a party's stated unwillingness to give evidence is a relevant factor; they cross‑appealed that the EAT should have found that the fears had sufficient objective basis and that Article 8 was engaged.

Court's reasoning and decision: The Court of Appeal held (i) that the correct starting point is the domestic common law principle of open justice and that Rule 50 reflects that principle; (ii) the ET should have applied a separate common law "interests of justice" enquiry, including a fact‑specific balancing exercise where risks to life, limb or fair administration of justice do not meet the high threshold for Articles 3 or 5; (iii) the ET incorrectly required an excessively high standard of "objective evidence" and was wrong to exclude consideration of the respondents' stated intention not to give evidence or to allow a defence, because such evidence can be a relevant factor to assess whether the administration of justice would be prejudiced; (iv) the ET erred in its analysis of the contractual duty of confidence and the public interest balancing required (it misunderstood the public interest question and used a flawed "floodgates" argument); and (v) accordingly the matter must be remitted for re‑determination by a differently constituted ET in accordance with the EAT and Court of Appeal judgments. The Court dismissed the appellant's appeal but allowed the respondents' cross‑appeal to the extent that the ET's assessment of objective evidence was flawed.

The Court of Appeal dismissed the appellant's appeal and allowed the respondents' cross‑appeal in part. The court held that the ET had erred by failing to apply a separate common law "interests of justice" analysis under Rule 50, by misdirecting itself on the required quality of "objective" evidence of risk and by misapplying the public interest/confidentiality balancing. The matter was remitted to a differently constituted Employment Tribunal for re‑determination in accordance with the EAT's and Court of Appeal's guidance, with particular directions to apply a distinct common law balancing exercise, to consider subjective fears and a party's stated willingness not to participate where reasonably founded, and to assess the public interest in any breach of a contractual duty of confidence.

The ET (Employment Judge Henderson) dismissed the Rule 50 application on 23 October 2020. The Employment Appeal Tribunal (Eady P) allowed the respondents' appeal in part on 11 May 2022 [2022] EAT 74 and remitted the application for re‑determination by a differently constituted ET. The present appeal to the Court of Appeal ([2023] EWCA Civ 50) resulted in dismissal of the appellant's appeal and allowance in part of the respondents' cross‑appeal, with remittal for re‑determination.