Reference:  EWCA Civ 50
Court: Court of Appeal
Judge: Lord Justice Lewis; Lady Justice Elisabeth Laing; Lord Justice Warby
Date of judgment: 26 Jan 2023
Summary: Reporting Restrictions - Rule 50, Employment Tribunals Regulations 2013 - Article 8 - Employment Tribunal
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Appearances: Greg Callus (Appellant) Ben Hamer (Appellant)
Instructing Solicitors: Kingsley Napley LLP
The Claimant, an employee of the First Defendant, a multinational telecoms company in Latin America and Africa, claimed that he was dismissed due to whistleblowing after reporting unlawful customer information supply to a government agency and a subsequent serious criminal offence in a foreign country.
The Claimant began Employment Tribunal (ET) proceedings against R1 and three other employees (Second to Fourth Defendants).
The Defendants applied under Rule 50 of the Employment Tribunals Regulations 2013 to prohibit any reference to the alleged connection between the subsidiary and the criminal offence on various grounds, including the interests of justice, protection of rights under the ECHR art.3, art.5 and art.8, and prevention of breach of confidence.
The Employment Appeal Tribunal (EAT) allowed the Defendants’ appeal in part and remitted the Rule 50 application to a differently constituted ET for redetermination.
The Claimant appealed.
- Whether the EAT was wrong to interfere with the ET’s conclusion that art.8 was not engaged, and whether any further or different balancing exercise should have been undertaken in relation to the confidentiality clause.
- Whether the Defendants’ fears engaged art.8, and if the application should be remitted for re-determination on a wider basis.
1. Appeal dismissed: The EAT correctly ordered the Rule 50 application to be redetermined, considering the interests of justice, protection of the Second Defendant’s art.8 rights, and protection of confidentiality rights. The ET had misdirected itself in its analysis of the Defendants’ evidence of risk and had not conducted a proper balancing process.
2. Cross-appeal allowed: The ET and EAT erred in finding that the Defendants’ evidence did not provide a sufficient basis for their fears.
The application was remitted for redetermination by a differently constituted tribunal.
The judgment is notable in accepting that the willingness of a party or witness to take part in a case is a relevant factor for the purposes of applications for reporting restrictions.