Dr Therese Mary William v Lewisham and Greenwich NHS Trust
[2024] EAT 58
Michael Clifford v Millicom Services UK Limited & Ors.
26 January 2023
[2023] EWCA Civ 50
Court of Appeal
A worker sued his employer for unfair dismissal after whistleblowing. The employer wanted to keep details of the whistleblower report secret to protect people's safety. The court said the lower court didn't properly consider the balance between open court proceedings and protecting people, so they sent the case back to be decided again.
Key Facts
- •Michael Clifford, a former global investigations manager at Millicom, brought unfair dismissal and discrimination claims against Millicom and three individual respondents.
- •Clifford's claims centered on whistleblowing activity, specifically reporting that Millicom staff tracked the mobile phone of a prominent citizen in a foreign country, which was followed by a serious crime against that citizen.
- •Millicom applied for an order under Rule 50 of the Employment Tribunals Rules to restrict public disclosure of information, citing risks to personal safety, human rights, and confidentiality.
- •The Employment Tribunal (ET) initially dismissed the application, while the Employment Appeal Tribunal (EAT) remitted it for redetermination.
Legal Principles
Open justice is a strong common law principle, with exceptions for securing the proper administration of justice or statutory provisions.
Common law, Rule 50 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013
Article 6 ECHR guarantees a fair and public hearing, with limited exceptions for protecting private life or the interests of justice.
Article 6, European Convention on Human Rights
Article 10 ECHR guarantees freedom of expression, including the right to impart and receive information, subject to limitations for legitimate aims.
Article 10, European Convention on Human Rights
Rule 50 allows Employment Tribunals to restrict public disclosure in the interests of justice, to protect Convention rights, or to protect confidentiality.
Rule 50, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013
Section 10A of the Employment Tribunals Act 1996 allows for private hearings to protect confidential information.
Section 10A, Employment Tribunals Act 1996
In considering applications to restrict open justice, a court must conduct a balancing exercise, weighing open justice against competing interests.
Common law, Article 8 ECHR, Rule 50
Outcomes
The Court of Appeal dismissed Clifford's appeal and allowed Millicom's cross-appeal.
The Employment Tribunal erred in its approach to the 'interests of justice', Article 8 ECHR, and confidentiality aspects of the Rule 50 application. The court found sufficient objective basis for the fears expressed by Millicom.
The case was remitted to a differently constituted Employment Tribunal for redetermination.
The original Employment Tribunal failed to adequately consider the common law principles of open justice, the relevance of subjective fears under Article 8 ECHR, and the correct test for confidentiality under Rule 50 and section 10A.