Reference:  EAT 74
Court: Employment Appeal Tribunal
Judge: The Honourable Mrs Justice Eady DBE, President
Date of judgment: 11 May 2022
Summary: Reporting Restrictions – Open Justice – Article 8 – Article 10 – Confidentiality
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Appearances: Greg Callus (Claimant) Ben Hamer (Claimant)
Instructing Solicitors: Kingsley Napley LLP
An interim Restricted Reporting Order of HHJ Auerbach remains in force in these proceedings.
The Claimant (“C”) was employed as a global investigations manager and brought a claim against the Appellants (“As”) in the Employment Tribunal (“ET”) including claims for unfair dismissal arising out of protected whistleblowing disclosures. The As sought a Rule 50 Anonymity and Restricted Reporting Order (“RRO”) seeking to prevent publication of certain non-party names and case details in reports of proceedings, but specifically permitting that it could be reported that “a Millicom subsidiary supplied the mobile telephone data and live tracking data of a customer to a government agency without lawful authority and that, subsequently, a very serious criminal offence was committed”; the Claimant alleges that the Appellants subjected him to detriment and ultimately dismissed him because of his investigation and reports on this matter (EAT judgment  & ).
The application was made in the ET on 2 September 2020, predicated on Articles 2 (right to life), 3 (freedom from torture) and/or 5 (right to liberty) European Convention on Human Rights (“ECHR”), on the basis that there was a risk to life and/or limb and/or of arbitrary arrest, primarily to employees in the overseas country in which the subsidiary operated. The day before the hearing, on 22 October 2020, the application was extended to cover the Article 8 rights (respect for family and private life) of the Second Appellant (“A2”) insofar as he held subjective fears of such repercussions, even if not objectively justified, and/or confidentiality arising from C’s employment contract. A2 said in evidence that if the Rule 50 RRO was not granted, he would not be prepared to testify or let A1 continue to contest the claim.
The application was refused by Employment Judge Henderson (“the Judge”). She held that Convention Rights (which are a facet of the vires of the ET to make a Rule 50 RRO) did not have extra-territorial effect outside the signatory states of the ECHR, and so the original application could only be considered on the basis of their common law equivalents. But whatever the vires, on the facts there was not – on an objective view – a “real and immediate risk” of breaches of Articles 3 or 5 or their common law equivalents. Article 2 was dropped by the As before the end of the hearing.
The Judge also held that the subjective fears of A2 about his colleagues in the foreign country in question were “insufficient” to engage his Article 8 ECHR right to a private and family life, and as such no balancing exercise against Article 10 (freedom of expression) arose.
The Judge accepted that C’s employment contract – emailed to the tribunal at 15:06 on the day of the hearing itself – contained a confidentiality clause, but found this bare fact was not enough to justify a Rule 50 order being made.
The As appealed.
(1) Was the Judge correct to hold that the rights of persons outside of the territory of the ECHR signatory states were not “Convention Rights” for the purposes of Rule 50?
(2) Did the ET have the power to make a Rule 50 RRO having regard to its common law powers (i.e. in the interests of justice) in respect of persons outside of the ECHR territory who were not participants in the proceedings?
(3) Were the Judge’s findings on Articles 3 or 5 ECHR, or their common law equivalents, perverse?
(4) Should the EAT interfere in the Judge’s assessment as to whether Article 8 ECHR was engaged (such that it should have conducted a Re S balancing exercise)?
(5) Was the Judge obliged to conduct a balancing exercise in respect of the confidentiality ground of the application?
(1) Yes – the Rule 50 power cannot be predicated on “Convention Rights” if the rights so described are the rights of individuals who do not live within the territory of Article 1 ECHR.
(2) Yes – the test is whether it is “necessary in the interests of justice” (including under Article 6, right to a fair trial) having regard to the extra-territorial effect, even if that effect was on non-participants.
(3) No – the Judge was entitled to reject the As case on Articles 3 and 5.
(4) Yes – it was not clear that the Judge had appreciated that A2’s “subjective fears” on behalf of colleagues (even if not objectively justified) could in theory engage his Article 8 ECHR rights.
(5) Yes – having found that there was a confidentiality clause, the Judge failed to conduct a full balancing exercise.
The application was ultimately ordered to be remitted to be heard by the ET on the allowed aspects of the appeal. The interim order of HHJ Auerbach would be continued pending the remitted hearing.
This is a significant decision which raises novel issues on the vires of the ET to make RROs predicated on Convention Rights (or other rights) of overseas persons who are not within the territory of Article 1 ECHR, nor parties to the litigation. It is also a very rare instance of ECHR rights in respect of life, torture and liberty under Articles 2, 3 and 5 being relied upon in an application for an RRO in an employment case. The EAT has never previously ruled on an RRO decision in such a case, but equally this case forms part of a recent trend in employment cases of RRO applications being appealed to the EAT.
The Claimant is seeking permission to appeal.