Millicom Service UK Ltd and Others v Michael Clifford
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Eady |
| Neutral Citation | [2022] EAT 74 |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 11 May 2022 |
Judgment approved by the Court for handing down MILLICOM SERVICE UK LTD & ORS v CLIFFORD
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© EAT 2022 [2022] EAT 74
Neutral Citation Number: [2022] EAT 74
Case No: EA-2020-001099-JOJ
IN THE EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 11 May 2022
Before :
THE HONOURABLE MRS JUSTICE EADY DBE, PRESIDENT
Between :
MILLICOM SERVICES UK LIMITED (1)
MARTIN FRECHETTE (2)
CARA VIGLUCCI (3)
HL ROGERS (4)
Appellants
- and –
MICHAEL CLIFFORD Respondent
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Ms Catherine Callaghan QC (instructed by Morgan Lewis & Bockius UK LLP) for the Appellants
Mr Greg Callus and Mr Ben Hamer, of counsel (instructed by Kingsley Napley, LLP) for the
Respondent
Hearing date: 10 March 2022
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JUDGMENT
This judgment was handed down by the Judge remotely by circulation to the parties' representatives
by email and release to The National Archives.
The date and time for hand-down is deemed to be 10:30am on 11 May 2022
Judgment approved by the Court for handing down MILLICOM SERVICE UK LTD & ORS v CLIFFORD
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© EAT 2022 [2022] EAT 74
SUMMARY
Practice and procedure – rule 50(1) schedule 1 of the Employment Tribunals (Constitution and
Rules of Procedure) Regulations 2013
The respondents made an application under rule 50(1) schedule 1 of the Employment Tribunals
(Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”) to prohibit the
disclosure of information relating to specified matters on the basis that this was said to be
necessary in the interests of justice, to protect rights under articles 3, 5, 6 and 8 of the European
Convention on Human Rights (“ECHR”), and/or pursuant to an obligation of confidence; in
particular, it was said to be necessary t o protect the safety and security of non-participants in the
litigation located outside the United Kingdom, in a country that was not a signatory to the ECHR.
It was the evidence of the second respondent that, if the application was not granted, he would not
be prepared to give evidence in the employment tribunal (“ET”) proceedings or let the first
respondent continue to defend those proceedings. The ET refused the application, holding that it
had no power under rule 50 to protect the rights of individuals under the ECHR who were located
outside the jurisdiction of the signatory states. In the alternative, it concluded that the evidence
adduced by the respondents was speculative and there was no objective verification of the
potential risks such as woul d meet the necessary threshold for the orders sought. T he ET further
found that the subjective fears raised by the second respondent were insufficient to engage article
8 ECHR and did not consider it should take account of his stated intentions i n relation to the
proceedings (if the application was refused): the re was no breach of article 6 ECHR, this was a
matter of choic e for the respondents. Although the ET accepted there was a c ontractual duty of
confidence on the claimant, it did not accept that outweighed t he principle of open justic e. The
respondents appealed.
Held: allowing the appeal in part
Judgment approved by the Court for handing down MILLICOM SERVICE UK LTD & ORS v CLIFFORD
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© EAT 2022 [2022] EAT 74
Although the ET was correct in its understanding of the territorial limitation of the ECHR, t hat
did not answer the question whether the derogations sought were necessary in the interests of
justice, whether that question was approached on common law principles or in conformity with
the article 6 right to a fair trial.
The ET had been entitled to find that there was no objective verification of the respondents’
concerns such as to meet the necessary threshold to demonstrate a materially increased risk for
the purposes of articles 3 and 5 ECHR. Different considerations arose, however, in relation to the
ET’s assessment of the evidence at common law and in respect of the protections sought under
articles 6 and 8 ECHR, in particular given that a rticle 8 could extend to include concerns
regarding the safety and security of work colleagues. The respondents’ subjective fears could be
relevant for those purposes and the ET had erred i n failing to consider whether those concerns –
even if not well-founded – were such as would prejudice the administration of justice if the
application was not granted. Although it would be open to the ET to discount the second
respondent’s evidence as to his intentions if the application was refused, this was still a relevant
matter for it to weigh in the balance and it had erred in failing to carry out any balancing exercise,
whether at common law or under articles 6 and 8 ECHR.
The ET had also erred in its rejection of the application on confidentiality grounds. Having found
that the claimant had owed a contractual duty of confidence, the ET failed to take that into account
as a relevant circumstance: the question was not merely whether it was legitimate for the
respondents to seek to keep the information confidential but whether it was in the public interest
for the duty of confidence to be breached.
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