What factors are relevant to a Rule 50 decision on restricting disclosure?

31 May 2022

In Millicom Service UK Ltd and Others v Michael Clifford [2022] EAT 74 the President of the EAT, Mrs Justice Eady, provided guidance as to various matters which may be taken into account in determining a Rule 50 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 application.

The application, which was rejected by the Employment Tribunal, had sought to prohibit certain disclosure on the grounds that this was necessary in the interests of justice, to protect article 3, 5, 6 and 8 rights, and / or pursuant to a obligation of confidence. In particular, disclosure restrictions were said to be necessary to protect non-participants in the litigation located in a country which was not a signatory to the ECHR, and the second respondent stated he would not give evidence in the proceedings or let the first respondent continue to defend the claim unless they were granted.

The EAT acknowledged the territorial limitations of the ECHR (which had contributed to the Tribunal’s rejection of the application), but explained that the test of whether the restrictions were necessary in the interests of justice required wider consideration of common law principles, as well as protections under the ECHR. Moreover, article 8 could extend to include concerns regarding the safety and security of work colleagues, and subjective fears were relevant for those purposes (even if not well-founded), where they could prejudice the administration of justice if the application was not granted. Accordingly, the second respondent’s evidence as to his intentions was a relevant matter, which should be weighed in the balance – albeit it would have been open to the Tribunal to discount this. Confidentiality was also a relevant circumstance to be taken into consideration, and the Tribunal should have considered whether it was in the public interest for the duty of confidence to be breached. The appeal was accordingly allowed in part.

This Judgment provides clearer guidance for parties and Tribunals regarding the breadth of the test under Rule 50, and may encourage parties considering applications based on more complex factors.


Alice Meredith

Call 2013

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