Sometimes, when a claim reaches the employment tribunal, an employer will ask the judge to anonymise client or employee identities in order to protect identities. Caroline Philipps and Mike Tremeer examine a recent appeal where such redactions were refused.
The Employment Appeal Tribunal has confirmed in the case of Frewer v Google the importance of the principle of “open justice” when considering requests to redact or anonymise information (such as the names of employees and clients) in documents disclosed in legal proceedings.
This decision is significant because it makes it more difficult to protect employee and client identities and other commercially sensitive information when defending a claim – something those of us working in HR should have in mind at the earliest stage of a potential dispute, when investigating a matter that could later result in litigation.
Frewer v Google background
During employment tribunal proceedings, both parties – the employer and employee – are required to provide each other with copies of 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”.
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 remove this information (known as redacting). However, a tribunal will only agree to the request if the information is commercially or personally sensitive or confidential.
Disclosure
Parties can also apply for an order to anonymise the identity of witnesses, organisations or other persons referred to in the documents or proceedings.
When considering making such an 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 – a fundamental of which is that proceedings should be open to the public and media, allowing wider scrutiny of decisions.
Frewer v Google – the facts
Frewer was a commercial director at Google. He was dismissed for the alleged sexual harassment of two colleagues. He subsequently brought a claim alleging that he had been dismissed and suffered a detriment because of being a whistleblower. 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.
Google asked for orders to redact “commercially sensitive and irrelevant” information and for the names of its clients (including the two named in Frewer’s protected disclosure) to be anonymised in all documents. Frewer objected.
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. Frewer appealed.
EAT decision in Frewer v Google
The EAT upheld the appeal and found that the tribunal had not taken the correct approach in deciding the issues. In particular, the EAT found that an order for anonymisation should only be made if the evidence provided by the party making the application persuades the tribunal that it is necessary, having considered the importance of names being included in documents, to allow the press to report using its editorial judgment.
The EAT also held that 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.
Implications for employers and HR
This case acts is a warning to employers that they may not be able to protect staff, client identities or other commercially sensitive information when defending a employment tribunal claim.
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. It will help if the HR personnel involved are well informed and able to explain why certain information may be sensitive to any particular employee and why it needs to remain confidential to help an employer’s legal representatives demonstrate that 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 employee and 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.
Ultimately, HR professionals will need to factor in this potential for unwanted publicity and wider commercial implications when considering a business’s approach to fighting a claim at the early stages, including whether or not to settle.
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Even if a claim lacks merit, there is likely to be a benefit to protecting staff from unwanted publicity, especially if, for example, an individual suffers from poor mental health, meaning they could find the process particularly anxiety-inducing. If employees feel unsupported by their HR team or that they had to participate in a public tribunal process unnecessarily and to their detriment, it is possible they could seek to allege constructive unfair dismissal in response.
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