Clifford v Millicom Services UK Ltd & Ors

The Claimant (“C”) was employed as a global investigations manager and brought a claim against the Respondents (“Rs”) in the Employment Tribunal (“ET”) including claims for unfair dismissal arising out of protected whistleblowing disclosures. The Rs sought a Rule 50 Reporting Restriction Order (“RRO”). They sought to prohibit the disclosure to the public or publication by any means of:

1. the name and identity of Tundu Lissu;
2. any reference to the shooting and/or attempted assassination of Tundu Lissu in Tanzania on 7 September 2017;
3. any reference to the alleged connection between MIC Tanzania or any of its employees and that event;

or any information likely to lead to the identification of those matters, save that it could be reported that “a Millicom subsidiary supplied the mobile telephone data and live tracking data of a customer to a government agency without lawful authority and that, subsequently, a very serious criminal offence was committed“.

The application was first made in the ET on 2 September 2020, predicated on Articles 2 (right to life), 3 (freedom from torture) and/or 5 (right to liberty) European Convention on Human Rights (“ECHR”), on the basis that there was a risk to life and/or limb and/or of arbitrary arrest, primarily to employees in the overseas country in which the subsidiary operated. The day before the hearing, on 22 October 2020, the application was extended to cover the Article 8 (right to respect for family and private life) of the Second Respondent insofar as he held subjective fears of such repercussions, even if not objectively justified, and/or confidentiality arising from C’s employment contract.

Rs’ application was refused on 27 October 2020 by Employment Judge Henderson. Rs appealed to the Employment Appeal Tribunal, which partially upheld their appeal on 11 May 2022, directing a remittance for redetermination by a differently constituted Employment Tribunal. Both parties further appealed to the Court of Appeal, which dismissed C’s appeal while allowing Rs’ cross-appeal. Interim reporting restriction orders were issued to prevent public disclosure of the information until the final determination of the application.

The Rule 50 application was heard afresh by Employment Judge Klimov on 14 to 16 February 2024 and pursued on three limbs: (i) the interests of justice; (ii) protection of the Second Respondent’s Convention rights; (iii) section 10A of the Employment Tribunals Act 1996/confidentiality. Four witnesses were cross-examined during the hearing.

1. Should the information be withheld in the interests of justice?
2. Should the information be withheld to protect Article 8 rights?
3. Should the information be withheld on confidentiality grounds/section 10A of the Employment Tribunals Act 1996?

The Employment Tribunal refused the application for an anonymity order and reporting restrictions.

1. No (Interests of Justice): The Judge found no objectively verified real and immediate risk to the safety of the Rs or their employees, either inside or outside Tanzania. The Rs’ fears were deemed speculative and unsupported by concrete evidence. The Judge concluded that granting the application would severely interfere with the principle of open justice and C’s Article 6 right to a fair trial. The information Rs’ sought to restrict was central to C’s case, particularly his allegations of whistleblowing and retaliation. Restricting this information would hinder C’s ability to present his case effectively and impede public understanding of the proceedings. Therefore, it was not necessary in the interests of justice to grant the derogations sought.

2. No (Article 8): Rs contended that disclosing the information would interfere with the Article 8 rights of the Second Respondent, Martin Frechette, specifically his right to respect for private and family life. The Judge first considered whether Article 8 rights were engaged, given that Mr Frechette now resides in Dubai, a non-ECHR signatory state. The Judge determined that individuals outside the territorial scope of the ECHR do not possess Convention rights under Article 8 in this context.

Assuming, arguendo, that Article 8 rights were applicable, the Judge found that any interference with these rights was minimal and justified. The subjective fears expressed by Mr Frechette were not substantiated, and the potential impact on his private life was not significant enough to warrant restricting open justice. The Judge conducted a balancing exercise and concluded that the interference with Mr Frechette’s Article 8 rights was outweighed by C’s Article 6 rights and the public interest in open justice.

3. No (Confidentiality): The final ground for the application was based on C’s contractual confidentiality obligations. Rs argued that the information in question was highly sensitive and that its disclosure would breach C’s duty of confidence, potentially undermining Millicom’s ability to conduct internal investigations effectively. The Judge noted that while C had an express duty to maintain confidentiality, Rs were selectively seeking to prevent disclosure of specific information related to Tundu Lissu and the alleged connection to Millicom. In assessing the balance between the duty of confidence and the public interest, the Judge found that the information was of significant public interest, particularly concerning allegations of serious wrongdoing by a multinational corporation and C’s whistleblowing claims. The Judge emphasised that upholding the duty of confidence in this context would hinder C’s ability to present his case and impede the administration of justice. Additionally, the principle of open justice and the Article 10 rights of C, the press, and the public outweighed Rs’ interest in maintaining confidentiality.

The conclusion to this four-year long reporting restriction application emphasises how mere subjective fears or potential reputational damage are usually insufficient grounds for derogations from open justice. The tribunal also importantly confirmed that contractual confidentiality obligations (which often arise in employment cases) cannot usually be used to restrict information crucial to the fair determination of a case, especially when that information contributes to a debate of general public importance.

Press report: ‘Firm disclosed phone data of shot Tanzanian politician, UK tribunal hears‘, The Guardian, 24 September 2024