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The President of the EAT, Mrs Justice Eady DBE, has handed down judgment in an appeal concerning the scope of the Employment Tribunal’s power to prohibit the disclosure of information under Rule 50 of the ET Rules of Procedure.

The Appellants, a multi-national telecommunications company and its senior employees, made an application to prohibit the disclosure of certain information in ET proceedings, relying on all three limbs of Rule 50, namely, the interests of justice, Convention rights and confidentiality. The Appellants argued that the proposed derogation from the open justice principle was necessary to protect the safety and security of non-participants in the litigation located outside the UK, in a country that was not a signatory to the ECHR. The second Appellant (the company’s in-house lawyer) gave evidence that if the application was not granted, he would not be prepared to give evidence in the ET proceedings or let the company continue to defend the proceedings. The ET refused the application.

The EAT allowed the appeal. The President found that although the ET was correct to hold that it had no power under Rule 50 to protect the rights of individuals under the Convention who were located outside the jurisdiction of the signatory states, and was entitled to hold the evidence did not meet the necessary threshold to satisfy Articles 3 or 5 ECHR, the ET had failed to properly consider the evidence in respect of the common law interests of justice limb or in respect of the protections sought under Article 8 ECHR. The EAT held that the second Appellant’s subjective fears regarding the safety and security of his work colleagues and evidence as to his future intentions were relevant when assessing whether the derogations sought were necessary in the interests of justice or to protect his Article 8 rights. The ET had erred in failing to carry out any balancing exercise whether at common law or under Articles 6 or 8 ECHR.

In addition, the EAT held that the ET wrongly rejected the application on confidentiality grounds. Having found that the claimant owed a contractual duty of confidence, the ET failed to weigh that in the balance. The ET should have asked itself not merely whether it was legitimate for the Appellants to seek to keep the information confidential but whether it was in the public interest for the duty of confidence to be breached.

The EAT remitted the application to a freshly constituted Tribunal.

This is the first EAT judgment to consider a Rule 50 application seeking to protect the safety and security of non-participants to litigation located outside ECHR territory, and the first to consider the scope of the ET’s power to restrict disclosure of information based on the common law, Articles 3 or 5 ECHR, or confidentiality.

Catherine Callaghan QC represented the successful Appellants. She was instructed by Morgan Lewis & Bockius UK LLP.

The full judgment may be found here.  

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