The claimant was employed by the respondent, a private equity firm, as Head of Acquisitions.  He was employed from September 2017 until he was dismissed on the grounds of redundancy in October 2020. He had brought a claim outlining that he had been automatically unfairly dismissed based upon protected disclosures that he had made.  The disclosures related to sexist, racist and homophobic language as well as purported breaches of fiduciary duty and fraud by the respondent.

The issue that came before the EAT here was the interim relief application brought by the claimant.  The respondent argued that the interim hearing should be conducted in private to restrict the public disclosure of the proceedings.   This was grounded by an argument based upon economic damage that could be faced by the respondent if the accusations were publicised.

At first instance, the Tribunal held that the hearing should be held in public to which the respondent appealed.   The rules of the Tribunal outlined that interim relief hearings are preliminary hearings which under Rule 56 should be heard in private except where there is a determination of a preliminary issue.  It was held by the EAT that an interim relief hearing would lead to the determination of a preliminary issue and therefore the prima facie position is that it should be heard in public.   The EAT did outline that it does not mean there is a determination of liability, but it does determine the right to interim relief and for that reason should be heard in public.  Additionally, the EAT reaffirmed its position that it should be held in public citing Article 6 of the European Convention on Human Rights as well as the principle of open justice which has existed in common law.

Following on from that decision, the matter for the EAT to decide was based upon whether the Tribunal should use its discretion to make a privacy order under Rule 50 (Rule 44 in Northern Ireland).  It was held that reputational damage is generally insufficient when arguing against the general principle of open justice. It is not a complete bar, but the ramifications of publicity would have to be a ‘catastrophe’ for the Tribunal to intervene in that way.  Accordingly, it was held that the interim hearing would be heard in public (even if it was remote).

Practical Lessons

This decision related to an argument by a respondent wishing to have a hearing in private for the reasons of potential reputational damage.  The EAT outlined that generally this would not be allowed.  A side point that needs to be considered is how the fundamental principle of open justice can be retained within the remote phase we are currently facing.   There is a need for a concerted effort to be made to ensure that all of those interested in legal proceedings are able to attend even if that is remote.   This must be done to ensure that the justice system does not become closed and distant from the public. 
https://www.gov.uk/employment-appeal-tribunal-decisions/queensgate-investments-llp-and-others-v-jonathan-millet-the-media-lawyers-association-intervener-ukeat-slash-0256-slash-20-slash-rn