Clifford v Millicom Services UK Ltd & Ors [2023] EWCA Civ 50 (26 January 2023)

Clifford v Millicom Services UK Ltd & Ors [2023] EWCA Civ 50 (26 January 2023)

The Employment Tribunal erred by failing to conduct a proper balancing exercise under the common law and Rule 50, by not considering the interests of justice and subjective fears as relevant factors, and by misdirecting itself on the sufficiency of objective evidence. The Employment Appeal Tribunal was correct to remit the application for re-determination, and the evidence provided a sufficient objective basis for the fears expressed by the Millicom parties.

Citation
[2023] EWCA Civ 50
Parties
Claimant/appellant: Michael Clifford; Defendant/respondent: Millicom Services UK Limited; Defendant/respondent: Martin Frechette; Defendant/respondent: Cara Viglucci; Defendant/respondent: HL Rogers
Jurisdiction
England and Wales
Judgment Date
26 January 2023
Procedural Posture
Appeal From Employment Appeal Tribunal / Court of Appeal Judgment
Outcome
Appeal dismissed; cross-appeal allowed.
Legal Topics
Open Justice, Anonymity Orders, Confidentiality in Litigation, Article 8 ECHR, Whistleblowing, Balancing Exercise, Employment Tribunal Procedure
Employment Law Human Rights Law Civil Procedure Open Justice Anonymity Orders Confidentiality in Litigation Article 8 ECHR Whistleblowing +2 more

Case Brief

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Parties

Michael Clifford

Claimant/appellant

Millicom Services UK Limited

Defendant/respondent

Martin Frechette

Defendant/respondent

Cara Viglucci

Defendant/respondent

HL Rogers

Defendant/respondent

Procedural Posture

Appeal From Employment Appeal Tribunal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the Employment Tribunal erred in refusing to grant derogations from open justice under Rule 50 to protect confidential information and the safety of individuals.
  2. 2 Whether subjective fears for safety and confidentiality can justify restrictions on publicity in tribunal proceedings.
  3. 3 Whether the Employment Appeal Tribunal was correct to remit the application for re-determination.

Ratio Decidendi

The Employment Tribunal erred by failing to conduct a proper balancing exercise under the common law and Rule 50, by not considering the interests of justice and subjective fears as relevant factors, and by misdirecting itself on the sufficiency of objective evidence. The Employment Appeal Tribunal was correct to remit the application for re-determination, and the evidence provided a sufficient objective basis for the fears expressed by the Millicom parties.

Court Disposition

Appeal dismissed; cross-appeal allowed.

Orders

  • Application for derogations to be remitted for re-determination by a differently constituted Employment Tribunal in accordance with the principles set out in the judgment.
  • The Tribunal must consider whether derogations are necessary in the interests of justice, to protect Article 8 rights, or to protect confidentiality, conducting a proper balancing exercise.