Millicom Services UK Ltd and Others v Clifford
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2022] EAT 74 |
| Year | 2022 |
| Court | Employment Appeal Tribunal |
2022 March 10; May 11
Industrial relations - Employment tribunals - Procedure - Restrictions on public disclosure - Allegation by claimant involving government of politically unsettled country - Respondents concerned employees located in country at risk if details published - Second respondent stating that proceedings would be undefended if no restriction order made - Whether protection of Convention rights extending to employees located outside Convention territories - Whether respondents’ Convention rights engaged - Whether claimant’s contractual duty of confidentiality engaged -
The claimant was employed by the first respondent as a global investigation manager responsible for conducting internal investigations into potential wrongdoings. His contract of employment contained clauses prohibiting him from disclosing confidential information. When he was dismissed, he commenced employment tribunal proceedings claiming, inter alia, unfair dismissal due to having made protected disclosures, specifically that he had reported on concerns that a subsidiary of the first respondent had supplied the mobile telephone and live tracking data of a customer to a government agency of another country without authority. The first respondent and three of its current or former employees made an application for an order, under rule 50(1) of the Employment Tribunals Rules of Procedure 2013F1, prohibiting the public disclosure of information relating to the disclosure, on the grounds that such an order was necessary to protect rights under articles 3, 5, 6 and 8 of the Convention for the Protection of Human Rights and Fundamental FreedomsF2; to protect the safety of employees of the first respondent and of the subsidiary who were located in the country in question (which was not a signatory to the Convention); in the interests of justice, given the respondents’ concerns; and/or pursuant to an obligation of confidence. The second respondent, a vice president of the first respondent, gave evidence that, if the tribunal declined to make the order sought, he would not be willing to give evidence or permit the first respondent to defend the proceedings because of the risk to employees. Refusing the application, the employment tribunal held that it did not have power under rule 50(1) to protect the rights of individuals under the Convention who were outside the jurisdiction of the signatory states, and, while accepting evidence that the country in question was volatile and politically unsettled, with many risks for foreign businesses, concluded that there was no evidence that that general level of risk would be heightened by disclosure of the specified matters. It found the respondents’ evidence to be speculative, with no objective verification of the potential risks, and that the respondents had failed to demonstrate the real and immediate risk necessary to establish a departure from the principle of open justice, and it decided that, although the claimant’s contract established a duty of confidentiality, that could not outweigh the principle of open justice.
On an appeal by the respondents—
Held, allowing the appeal, that, although section 6 of the Human Rights Act 1998 imposed a duty on the employment tribunal to act compatibly with the Human Rights Convention, including the right to a fair trial under article 6, and under rule 50(1) of the Employment Tribunals Rules of Procedure 2013 the tribunal could make an order to protect the Convention rights “of any person”, that duty was not engaged when the protection was sought in respect of individuals outside the territories of the Convention; that the tribunal had, therefore, correctly concluded that its power to make an order derogating from the principle of open justice to protect rights under the Convention could not extend to those located in the country in question; that, however, while the tribunal had been entitled to reach the conclusion it did on the question of the potentially increased risk under articles 3 and 5 of the Convention, different considerations arose in relation to the tribunal’s assessment of whether the evidence established the necessity of the derogations sought as being in the interests of justice at common law and in respect of articles 6 and 8; that a potentially relevant factor was the second respondent’s stated intention not to give evidence or to allow the first respondent to continue to contest the proceedings if the orders sought were not made; that it was wrong to dismiss that evidence out of hand, when it could potentially impact on the administration of justice and the respondents’ article 6 rights and on the second respondent’s article 8 rights, allowing that they might extend to his concerns regarding the safety and security of his work colleagues; that the tribunal erred in failing to carry out any balancing test of proportionality weighing the potential relevance of the information in question against the risk which its disclosure might cause to the judicial process, whether at common law or under articles 6 and 8; and that, further, the tribunal had erred in rejecting the application on confidentiality grounds, since, having found that the claimant owed a contractual duty of confidence, it failed to consider whether it was in the public interest for that duty to be breached (post, paras 82–84, 92, 93, 103, 104, 110).
The following cases are referred to in the judgment:
A v British Broadcasting Corpn
AAA v Associated Newspapers Ltd
ABC v Telegraph Media Group Ltd
Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust
Al-Skeini v United Kingdom (Application No 55721/07) (
Ameyaw v Pricewaterhousecoopers Services Ltd [
Archer v Comr of Police of the Metropolis
Bank Mellat v HM Treasury (No 2)
Brearley v Higgs & Sons
Fallows v News Group Newspapers Ltd [
Government of United States of America v Giese
Guardian News and Media Ltd, In re
Henriques v Judicial Authority of Portugal
Khuja v Times Newspapers Ltd
Kudla v Poland (Application No 30210/96) (
Libyan Investment Authority v Société Générale SA (No 1)
Libyan Investment Authority v Société Générale (No 2)
Moss v Information Comr
Niemietz v Germany (Application No 13710/88) (
Officer L, In re
Price v United Kingdom (Application No 33394/96) (
R v Legal Aid Board, Ex p Kaim Todner [
R (M) v Parole Board
RXG v Ministry of Justice
Rabone v Pennine Care NHS Trust
S (A Child) (Identification: Restrictions on Publication), In re
Smith v Ministry of Defence
TYU v ILA Spa Ltd [
Venables v News Group Newspapers Ltd [
W’s Application, In re
Wales (HRH Prince of) v Associated Newspapers Ltd
Yalland v Secretary of State for Exiting the European Union
Yeboah v Crofton
APPEAL from a decision of an employment judge sitting at London Central
By a decision on 23 October 2020 the employment judge (sitting in private) refused an application by the respondents, Millicom Services UK Ltd and others, seeking an order, under rule 50(1) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, prohibiting disclosure of the identity of a customer referred to by the claimant, Michael Clifford, in relation to his claim of protected disclosure detriment, on the ground that the order was necessary to protect the safety of non-participants in the litigation who were located outside the United Kingdom in a country that was not a signatory to the Convention for the Protection of Human Rights and Fundamental Freedoms.
The respondents appealed on the grounds that the tribunal (1) wrongly held that it had no power to make an order restricting disclosure of information to protect persons outside the jurisdiction of the United Kingdom and/or the signatory states to the Convention who were not parties or witnesses; (2) erred when considering whether the evidence satisfied the test of harm of the kind qualifying for protection under article 3 or 5 of the Convention; (3) misunderstood the relevance of the respondents’ subjective fears and, as a result, failed to undertake the balancing exercise under article 8(2) of the Convention; and (4) erred in finding that, although the claimant owed the respondents a duty of confidentiality in respect of information relating to the specified matters...
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