Background:

The respondent provided digital services to emerging markets in Africa and Latin America.   The claimant stated he reported concerns that a subsidiary which supplying customer information to a government agency and serious criminal offences were being committed as a result.   He then argued that he had been dismissed because of his public interest disclosure.

The issue arising was the respondent’s application to prohibit the reference of the connection between the subsidiary and the criminal offences citing that it was in the interests of justice as well as a series of rights under the European Convention.  The Vice President of the respondent stated that if the application was refused he would not give evidence or allow for the proceedings to be defended due to his concerns for the safety of his employees.

Outcome:

The Tribunal, at first instance, rejected the application citing that they did not have power to protect individuals who were outside of the signatory nations to the ECHR. They also stated that it was irrelevant that the respondent would not put forward a defence or give evidence.   Lastly, it was also found that the arguments did not satisfy the threshold tests considering no objective evidence was put forward to support the arguments.

The EAT rejected most of these arguments against with the exception that the Tribunal had erred in confining its decision to the consideration of the ECHR rights rather than the interests of justice and the right to a fair trial more generally. The EAT also stated that Article 8, the right to family and private life, could be engaged and a balancing exercise would have to be conducted. It was remitted back to the Tribunal for a decision.

Both parties appealed.  The claimant cited that Article 8 was not engaged and no balancing act should take place.   The respondent appealed asserted that the remitted case should have been wider which takes into account their ‘genuinely held fears’.  The Court of Appeal outlined that open justice was a fundamental principle of the common law system.  That being said, it could be interfered with where there were other interests such as the right to life and security of an individual.   In terms of the interests of justice when it comes to interfering with open justice there must be a balancing process which had not been undertaken by the Tribunal.   It was held that there is no authority for the Tribunal to ignore the proposition that no evidence would be put forward by a party should no order be made.  As a result, of this the Court of Appeal stated the EAT was right to order for the decision to be remitted.  They upheld the cross-appeal from the respondent citing that the genuine fears argument should give rise to Article 8 considerations and the need for a balancing of rights exercise to be conducted by the Tribunal.   The claimant’s appeal was dismissed with the Court of Appeal noting that the arguments put forward by the respondent initially were more than mere subjective fears and there was some factual basis.

Practical Guidance for Employers:

This interesting case relates to the extent to which the Tribunal can intervene to have some material dealt with privately and against the normal notion of open justice.  In this situation, the Court of Appeal notes that whilst it is not a determinative factor the fact that one party will refuse to give evidence should be taken into consideration.  Additionally, they further stated that there was no requirement to set out objective facts to show a fear but that some factual basis will allow for the particular ECHR rights to become ‘live’ and require consideration.
http://www.bailii.org/ew/cases/EWCA/Civ/2023/50.html