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 to 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 would meet the necessary threshold for the orders sought. The 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 in relation to the proceedings (if the application was refused): there was no breach of article 6 ECHR, this was a matter of choice for the respondents. Although the ET accepted there was a contractual duty of confidence on the claimant, it did not accept that outweighed the principle of open justice. The respondents appealed.
Held: allowing the appeal in part
Although the ET was correct in its understanding of the territorial limitation of the ECHR, that 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 article 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 in 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.
The Honourable Mrs Justice Eady DBE, President
 EAT 74
England and Wales
Updated: 21 May 2022; Ref: scu.677563