The potential for reputational and commercial damage is often the greatest concern of those on the receiving end of Employment Tribunal (ET) claims. However, as an important decision underlined, such anxieties almost never justify departures from the fundamental principle of open justice (Queensgate Investments LLP and Others v Millet).

The case concerned a former senior employee of a private equity firm who had been dismissed for purported redundancy. He subsequently launched ET proceedings in which he claimed to have suffered harassment, victimisation, various forms of discrimination and detrimental treatment for whistleblowing. He asserted that sexist, racist and homophobic language was used in his workplace and made serious allegations against the firm's CEO, potentially amounting to fraud.

After the man applied for interim relief pending a full hearing of his claim, the firm argued that an order restricting publicity should be imposed. It said that it was in a precarious financial position due to the COVID-19 pandemic and that the public airing of the man's allegations would have catastrophic consequences. The ET, however, refused the firm's request.

Dismissing the firm's challenge to that decision, the Employment Appeal Tribunal (EAT) emphasised the overriding importance of the open justice principle. Justice had to be seen to be done and, in reporting employment proceedings, the media acted as the eyes and ears of the public. It agreed with the ET that, on a true interpretation of the Employment Tribunal Rules 2013, preliminary applications for interim relief should be heard in public.

The EAT noted that reputational damage, even if it may result in significant loss, will not support a derogation from the open justice principle. A risk of severe economic damage, including job losses or a cessation of trading, might justify restrictions on publicity being imposed. However, such a step would require justification by full, frank and totally compelling evidence. Commercial embarrassment alone could never justify an order restricting publicity.

The firm did not put its case on the basis that a public hearing would lead to a total denial of justice or to a near certainty of insolvency. It did not allege that publicity would force it to concede the man's claim. The EAT also noted that, when reading reports of the preliminary hearing, members of the investment community could be taken to understand the difference between allegations and findings.

Although mere allegations might affect investment decisions, that was, save in the most exceptional circumstances, a necessary consequence of open justice. The EAT noted that, otherwise, every company faced with allegations of serious misconduct which might result in loss of investor confidence would be able to seek orders restricting publicity. That would in turn result in the public being prevented from hearing about some of the most serious cases that come before ETs.

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