Michael Clifford v Millicom Services UK Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lady Justice Elisabeth Laing,Lord Justice Lewis |
| Judgment Date | 26 January 2023 |
| Neutral Citation | [2023] EWCA Civ 50 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001094 |
[2023] EWCA Civ 50
Lord Justice Lewis
Lady Justice Elisabeth Laing
and
Lord Justice Warby
Case No: CA-2022-001094
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mrs Justice Eady (President)
[2022] EAT 74
Royal Courts of Justice
Strand, London, WC2A 2LL
Greg Callus and Ben Hamer (instructed by Kingsley Napley, LLP) for the Appellant
Tom Hickman KC (instructed by Morgan Lewis & Bockius UK LLP) for the Respondents
Hearing date: 1 December 2022
Approved Judgment
This appeal is about how an Employment Tribunal should decide an application to restrict open justice by prohibiting the public disclosure of information deployed in the proceedings, where it is said that such disclosure would be contrary to the interests of justice, endanger personal safety, infringe human rights, and breach contractual rights to confidentiality.
The legal framework
Proceedings in the Employment Tribunal (“ET”) are subject to the strong common law principle that justice should be administered in public and fully reportable save in certain limited circumstances. The circumstances that are relevant for present purposes are where restrictions on transparency are necessary to secure the proper administration of justice or are provided for by statute.
Litigants in ET proceedings also enjoy rights under Article 6 of the European Convention on Human Rights (“the Convention”). Article 6 entitles a person whose rights are at issue in civil proceedings to “a fair and public hearing” from which the press and public can only be excluded in certain prescribed and limited circumstances. These rights sit alongside those conferred by Article 10(1) of the Convention. This guarantees freedom of expression: relevantly, the right to impart and receive information without state interference unless that interference is necessary in pursuit of one of the legitimate aims identified in Article 10(2). Article 10 rights are enjoyed not only by litigants but also by those who wish to observe legal proceedings. The Convention rights, including those under Articles 6 and 10, are enforceable domestically by virtue of s 6 of the Human Rights Act 1998 (“ HRA”), which prohibits a court or other public authority from acting incompatibly with the Convention.
Restrictions on open and public justice in particular cases have come to be known as “derogations”.
The application for derogations in this case relied on rule 50 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“Rule 50”). Rule 50 provides that an ET:-
“(1) … may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the [1996 Act]”
The Convention rights that are relevant for this purpose in this case are Articles 2 (right to life), 3 (prohibition on inhuman and degrading treatment), 5 (right to liberty and security of person), 6 (right to a fair trial) and 8 (right to respect for private life).
Section 10A to the 1996 Act provides that:-
“(1) … regulations may enable an employment tribunal to sit in private for the purpose of hearing evidence from any person which in the opinion of the tribunal is likely to consist of … (b) information which has been communicated to him in confidence or which he has otherwise obtained in consequence of the confidence reposed in him by another person, …”
Rule 50(1) therefore identifies three grounds on which a derogation from open and public justice may be made: the interests of justice, the protection of a person's Convention rights, and the protection of confidentiality. Clearly, more than one could apply in a particular case. All three arise for consideration in this appeal.
Rule 50(2) provides that an ET considering whether to make an order under the Rule “shall give full weight to the principle of open justice and to the Convention right to freedom of expression”.
Rule 50(3) contains illustrative examples of orders that can be made under the rule. One of these is “an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise …” In this case the application was to anonymise “other persons” who were neither parties nor witnesses.
The proceedings below
The first respondent (“Millicom”) is a member of a group of companies that provide digital services to emerging markets in Latin America and Africa. From 2017 Millicom employed the appellant (“Mr Clifford”) as a global investigations manager. His role was to conduct and oversee internal investigations into suspected wrongdoing in the group's operations. In November 2019 Millicom dismissed Mr Clifford on grounds of redundancy. He then brought proceedings against Millicom in the ET complaining of ordinary unfair dismissal, automatic unfair dismissal, detriment on the grounds of protected disclosures, and disability discrimination. He also sued the three individual respondents on the grounds that they were fellow workers who were involved in subjecting him to the detriments of which he complained. I shall call the respondents collectively “the Millicom parties”.
For the purposes of this appeal Mr Clifford's key allegations are that he was subjected to detriment and dismissed because of whistleblowing activity. In September 2017, he reported to Millicom that his investigations in a foreign country had revealed that staff of a Millicom subsidiary had tracked the mobile phones of a customer who was a prominent citizen in that country and disclosed their findings to a government agency there. The prominent citizen had later been the victim of a very serious criminal offence. Mr Clifford's case is that all the Millicom parties treated him unfavourably and Millicom ultimately dismissed him for investigating these matters and reporting them to Millicom.
I have not named the customer or the subsidiary company or given details of the attack. Mr Clifford's account of things is not public knowledge. But he set it all out in his claim documents. The Millicom parties then applied to the ET for an order under Rule 50 prohibiting the public disclosure or reporting of the identity of the customer, details of the attack, the alleged link between the attack and the Millicom company and its staff, or anything that was likely to lead to the identification of those matters. They proposed that any reference to any of those matters should be by way of a code, such that (for instance) the customer would be referred to as “Person X” the offence as “Event Y” and the foreign country as “Country Z”.
The Millicom parties' case was that such an order was necessary in the interests of justice and/or to protect rights under Articles 2, 3, 5, 6 and 8 of the Convention and/or because Mr Clifford owed Millicom a contractual duty of confidence the breach of which would not be justified in the public interest. Evidence was filed in support of those contentions. This included assertions as to the risks to which Millicom employees would be exposed if the information was made public, and a statement by the second respondent (“Mr Frechette”) that those risks were such that if the ET declined to make the order sought, he would not be willing to give evidence or to permit Millicom to defend the proceedings. Mr Frechette is Vice President Legal – Corporate of the Millicom group. It has not been in issue that he has control over how Millicom deals with the litigation.
By the time the application was heard the Millicom parties had abandoned reliance on Article 2. But they maintained reliance on the interests of justice and the other Convention rights I have mentioned, contending that disclosure was “likely to put at serious risk the safety and security of current and former Millicom employees” including the individual respondents and Mr Clifford himself. At a late stage the Millicom parties added reliance on confidentiality, submitting a copy of Mr Clifford's contract of employment containing a confidentiality clause.
On 23 October 2020 the ET dismissed the application. Employment Judge Henderson (“the EJ”) held that (1) the ET had no jurisdiction under Rule 50 to protect the Convention rights of individuals who are outside the jurisdiction of the signatory states; (2) if and to the extent that the Millicom parties were entitled to rely on the rights under Articles 3, 5 and 8 of the Convention their case did not satisfy the applicable threshold tests as there was no “objective evidence” to support it; (3) Mr Frechette's evidence that he would not be a witness or allow Millicom to defend the proceedings if no derogations were granted was legally irrelevant, and there was nothing else that outweighed the open justice principle or the Article 6 right; and (4) although Mr Clifford owed Millicom a contractual duty of confidence this could not outweigh the open justice principle.
The Millicom parties obtained permission to appeal. On 11 May 2022 Mrs Justice Eady, the President of the Employment Appeal Tribunal (“EAT”), allowed the appeal in part. Eady P upheld the EJ's conclusions that the foreign staff did not enjoy Convention rights, and that the evidence did not demonstrate a sufficiently verified objective basis for the alleged risks to safety and security. But she concluded that the EJ had erred by (1) confining her analysis of the case to...
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