Analysis

Frewer v Google UK Ltd

Background

During Employment Tribunal proceedings, both parties - the employer and employee - are required to provide each other with all documents in their possession, custody or control which are relevant to the issues in the claim, whether they support or undermine their case. This is known as ‘disclosure’ and is governed by Rule 31 of the Employment Tribunals Rules of Procedure 2013 (ET Rules).

If documents which must be disclosed as relevant also contain information which is irrelevant to the case, parties can apply to the Tribunal for an order to exclude this information under Rule 29 of the ET Rules. However, a Tribunal will only agree to the request if the information is commercially or personally sensitive or confidential. The information can be removed by way of ‘redaction’ i.e. editing the text out of the document.

Parties can also apply under Rule 50 of the ET Rules for an order to anonymise the identity of witnesses, organisations or other persons referred to in the documents or proceedings. When considering making such order, the Tribunal must weigh up the need to protect the rights and interests of that person or organisation (such as commercial or personal confidentiality) against the principle of ‘open justice’. Open justice means the ‘fundamental importance that justice should not only be done but should manifestly and undoubtedly been seen to be done’. In other words, Court proceedings should be open to the public and the media should have the right to report on these. This allows public scrutiny of decisions and an understanding of how the justice system works, including why decisions are taken.

Facts

Mr Frewer was a Commercial Director at Google. He was dismissed for the alleged sexual harassment of two colleagues. He subsequently brought a Tribunal claim under the whistleblowing legislation for detriment and automatic unfair dismissal. His claim related to protected disclosures he had made about Google’s anti-competitive behaviour; in particular his allegation that Google enabled its two main clients in the travel industry to receive a disproportionate number of hits when people searched for holidays.

As part of the case management process, Google asked for orders under ET Rules 29 and 50 to redact ‘commercially sensitive and irrelevant’ information and for the names of its clients (including the two named in Mr Frewer’s protected disclosure) to be anonymised in all documents, including the hearing bundle, witness statements and the judgment. Mr Frewer objected.

Tribunal decision

The tribunal ordered anonymisation and redaction in accordance with Google’s request. It considered that the identity of Google’s clients was irrelevant to the issues of the case and that anonymisation would have minimal interference with the principles of open justice.

Mr Frewer appealed.

EAT decision

The EAT upheld the appeal and found that the Tribunal had not taken the correct approach in deciding the issues.

In respect of the redaction order, the Tribunal should have applied the relevant disclosure rules and principles in a more structured manner. Further, it had failed to consider whether all the documents and information in question were actually disclosable under Rule 31 of the ET Rules at all (which the EAT doubted).

The EAT remitted the question of redaction to the Tribunal, setting out the relevant considerations as follows:

1. Is the information which relates to the request for redaction relevant? In other words, does it support or is it adverse to either party’s case?
2. Is the information necessary for the fair disposal of the case?
3. If the answer is ‘no’ to either of the above the information should not be included in the documents for the Tribunal (which should use its power under Rule 29 to exclude it).
4. If the answer is ‘yes’, the Tribunal should consider whether to make an order under rule 50 of the ET Rules for anonymisation. An order should only be made if the evidence provided by the party making the application persuades the Tribunal that it is necessary, having taken into account the principles of open justice. This includes considering the importance of names being included in documents - particularly of those persons or organisations who played a significant role in the subject matter of the proceedings. This allows the press to report using its editorial judgement.

The EAT also remitted the question of anonymisation back to the Tribunal because it considered that the Tribunal had not correctly applied Rule 50. The fact that the names of the parties were irrelevant to the issues in this case was not sufficient to justify an anonymisation order. Even if it was technically possible for a court to decide a case without people or organisations being named, there is a public interest in naming the parties involved. Press reporting which includes names is more interesting to readers than stories about unidentified people and organisations. In this case, it was likely that the public would have a genuine and legitimate interest in knowing the identity of the two key clients who had been given an alleged advantage in holiday searches.

Fladgate comment

This is a warning to employers that they may not be able to protect client identities or commercially sensitive information when fighting a Tribunal claim. Many employers will want to factor in this potential for unwanted publicity when considering whether to settle a claim (even when it lacks merit).

To minimise the risk of unwanted publicity, employers should first carry out a careful disclosure exercise to ensure that no irrelevant information is unnecessarily put before the Tribunal. This will include requiring the removal of irrelevant information disclosed by the claimant and resisting any request to disclose irrelevant documents. This approach should minimise, as far as possible, the amount of information which requires redaction or anonymisation.

If employers do need to apply for an order for redaction or anonymisation, they should focus on why the order is necessary despite the principles of open justice. Employers should emphasise the commercial or personal sensitivity of the information; why it needs to remain confidential; and why this need is not outweighed by the public interest in disclosure. However, this decision demonstrates that this will not be an easy task and that client names will not be routinely removed. The EAT’s predominant message is that court proceedings should be open and it is for the press to exercise its editorial judgement in what it reports.