Google told it can't protect witness identities in employment case

A former Google employee has successfully appealed an order by the Employment Tribunal in a case that clarified rules surrounding anonymity of witnesses. 

Mr R Frewer brought several claims against Google UK Ltd including automatic unfair dismissal for having made protected disclosures.  

As part of his case, Frewer had asserted that Google had acted in an anti-competitive manner to ensure that its two main clients  received a disproportionate number of hits when users searched for information about holidays.  

Google applied to the tribunal to seek anonymisation of all its client's names where they appeared in the hearing bundle, witness statements or any subsequent judgment.  

It also requested that no confidential information belonging to Google or any of its clients be referred to in any decision and that it be permitted to redact commercially sensitive and irrelevant information from the hearing bundle.  

The tribunal granted both orders. It considered that the identity of and commercial information about Google’s clients was irrelevant to Frewer’s unfair dismissal claims. 

Maintaining the anonymity of Google’s clients would have minimal interference with the principle of open justice and would not prevent Frewer from having a fair trial.  

Frewer appealed against the orders, arguing that the tribunal had no power to make either order for the reasons it had given.  

The Employment Appeal Tribunal ruled in his favour. 

It held that it was an error of law for the tribunal to make the first order without considering the right to freedom of expression under the European Convention on Human Rights or the additional public interest principle that usually requires the naming of those significantly involved in proceedings.  

The EAT noted that there is a public interest in hearings being conducted so that the press can report the names of those involved, even if the court could have done its job without the names being revealed.  

There was a strong argument that the public would have a genuine and legitimate interest in knowing the identity of the holiday companies who were said to be given an advantage.  

Any press report would be likely to be of far less interest to readers if the identity of these companies was kept secret.  

The EAT considered it important that a distinction is drawn between information that is 'commercially sensitive' and that said to be 'confidential'.  

Material can be commercially sensitive without being confidential, in the sense that the information has been imparted in circumstances that result in a legal right to confidentiality.  

The EAT also concluded that the second order, permitting Google to redact commercially sensitive and irrelevant information, could not stand because the tribunal failed to conduct the necessary structured analysis and to sufficiently identify the appropriate rules or principles that were applied.  

Google’s application was remitted to the tribunal.  

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