Employment tribunal procedure

The employment tribunal rules of procedure govern the litigation process up to and including a full hearing.

There are rules about disclosing relevant documents - parties must show the other side any documents that they intend to rely on as well as any documents which could adversely affect their case, or support or undermine the other party’s case. Rule 50 deals with privacy and the circumstances in which the tribunal may prevent or restrict public disclosure of any part of the tribunal process in the interests of justice.

This can include an order to anonymise the identity of any party or witness or other person named in proceedings. The courts, including employment tribunals, operate on the basis of ‘open justice’ to allow for public scrutiny of court decisions. The reporting of decisions is an important part of open justice and the right to name people in judgments is an important aspect of the right to freedom of expression and the right to a public hearing. The EAT has looked recently at a case where key clients were named in a claim and the employer wanted them to be anonymised for commercial reasons.

In Frewer v Google, the employee was a commercial director who was dismissed in 2020 after more than ten years’ service. The employer said his dismissal was for conduct reasons after he sexually harassed two female colleagues at a work event. The employee brought claims for unfair dismissal and whistleblowing, including over 100 alleged protected disclosures. Some of those whistleblowing allegations related to named clients of Google who the employee alleged received a disproportionate number of hits when people searched for holidays. Google asked for the names of its clients to be anonymised in the tribunal paperwork. They also asked for certain information to be redacted (blanked out). The employment tribunal agreed that the client names should be anonymised, and certain commercially sensitive and irrelevant information should be redacted. The employee appealed.

The EAT said the tribunal had been wrong to grant the employer’s requests. The redaction order had been given without properly considering the disclosure duties. In granting the order to anonymise client names, the tribunal had not considered the employee’s freedom of expression rights or considered cases about the importance of naming people in proceedings. The EAT said there is a public interest in the press being able to report the names of the people involved in legal proceedings. If anonymity orders could be granted simply because the names weren’t strictly relevant to the proceedings, such orders could be granted in most cases.

Arguably the public would have a legitimate interest in knowing the names of those key clients who had been given an alleged advantage and there would be less interest in the story if the names were kept secret. The tribunal should have considered these issues before granting the order. There needed to be a full consideration of the competing rights involved before granting such an order - the employee’s right to freedom of expression and a fair hearing on the one hand and the company’s issues of commercial confidentiality on the other.

The EAT in this case also provided helpful commentary on the 100 alleged protected disclosures involved in this case, saying that the employee needed to whittle those down to those which he said caused his dismissal. The judge commented that claimants think the chances of winning will increase if there are a greater number of whistleblowing allegations, saying that the contrary is often true. This will be music to many employer’s ears. Employers should also note that employees may successfully argue that there is public interest in naming individuals or businesses in employment litigation. Tribunals will need to be persuaded that anonymisation is necessary when balanced against the claimant’s rights to a fair hearing and freedom of expression.

The EAT has indicated its view that the two key Google clients should be named, which could have commercial consequences for Google and the continuation of these proceedings. There may be cases for other employers where the naming of clients in employment litigation would be commercially sensitive. Employers will need to consider this angle along with all the other strengths and weaknesses in any given case to decide the best commercial way forward overall.

For further advice on any employment matter, please contact Oliver Tasker who will be able to advise. Alternatively, please click here to view our employment law page.