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.