The press and employment tribunal proceedings: Client names and commercially sensitive information in tribunal documents may have to be open to scrutiny so that the principle of open justice is served

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The press and employment tribunal proceedings: Client names and commercially sensitive information in tribunal documents may have to be open to scrutiny so that the principle of open justice is served

Published 7 abril 2022

The EAT has held that an employment tribunal did not properly consider the principle of open justice in ordering the anonymization of client names and redaction of commercially sensitive information.

THE FACTS

Mr Frewer was a Commercial Director of Travel for EMEA at Google UK Ltd until he was summarily dismissed because of allegations of sexual harassment by two colleagues.  He claimed in the employment tribunal that (among other things) he had suffered detriment and been dismissed because he was a whistle-blower. 

Google successfully applied to the employment tribunal for an order that the names of its clients in the hearing bundle and witness statements should be anonymised and replaced with numerical codes.  Mr Frewer appealed this decision to the EAT.  He also appealed another tribunal order that “commercially sensitive and irrelevant" information should be redacted. 

The EAT allowed both of Mr Frewer’s appeals, and the questions of anonymization and redaction were remitted to the tribunal. 

In relation to the anonymization order, the EAT considered the principle of open justice, noting that the main purpose of the principle is to enable public scrutiny of the way in which courts decide cases and to enable the public to understand how the justice system works and why decisions are taken.  The principle is that it is of “fundamental importance that justice should not only be done but should manifestly and undoubtedly been seen to be done”.  Even where a court can make a decision without knowing names, there is a legitimate public interest in publishing names because press reporting which includes names is more interesting to readers than stories about unidentified people.  The right to report is also an important aspect of the right to freedom of expression under Article 10 of the European Convention on Human Rights. 

The EAT held that the tribunal had not taken into account the principle of open justice or Article 10 rights.  The EAT considered it likely that the public would have a genuine and legitimate interest in knowing the identity of key clients who (Mr Frewer alleged) had been given an uncompetitive advantage.  The EAT did comment that it is possible that issues of commercial confidentiality could mean that some client names could be redacted, but that this would probably not apply to the two main clients to whom Mr Frewer alleged Google had given an uncompetitive advantage.  The question of anonymization was remitted to the employment tribunal. 

The EAT also considered that the tribunal had not properly considered the relevant Employment Tribunal rules relating to anonymization and redaction. 

In considering the order to redact commercially sensitive information, the EAT considered that the tribunal had not sufficiently analysed the application for the order and had not identified the appropriate rules or principles which should have been applied. The EAT remitted the question of redaction to the employment tribunal, setting out the considerations that should be adopted in considering redaction, which are:

  • First, to consider whether there is any material that remains the subject of a dispute that is relevant in the sense of being likely to support, or be adverse to, a party’s case; and
  • Second, consider whether the material is necessary for the fair disposal of the case.

If the material does not meet both these criteria, it should not be disclosed to the tribunal.  The EAT thought it likely that some of the material before the tribunal in this case did not meet these two criteria.  Only if the material meets these two criteria should the court consider making an order for redaction.  An order for redaction should only be made if a Respondent can convince the tribunal that the order is necessary, giving full regard to the open justice principle.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This case, together with the Guardian case (which we consider here) in which the EAT also considered the principle of open justice, is an important development in this area of law, and might be worrying for employers.  The judgment may result in a greater risk that client names and other commercially sensitive information will be open for scrutiny by the press, and therefore by the public.  It remains important that only material that is necessary to the fair disposal of the case is disclosed and this is particularly so where documents contain commercially sensitive information.

There is a silver lining for employers in the non-binding comments that the EAT made about the volume of protected disclosures pleaded by Mr Frewer.  According to Google, he had alleged in excess of 100 separate disclosures.  The EAT commented that those drafting whistleblowing complaints often feel that the greater the number of disclosures and detriments that are asserted, the greater the prospects of success, when the converse is often the case.  This should encourage claimants to focus on quality, rather than quantity, potentially limiting areas of dispute and therefore the time and cost of defending claims.

Mr R Frewer v Google UK Limited and Others

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

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