23 March 2018
and while privacy injunctions may help, they won’t always keep the cat in the bag.
You may have thought that the days of lewd jokes being cracked in all-male board rooms by Gordon Gecko wannabes were a thing of the past. The extraordinary facts in the case of BUQ v HRE suggests otherwise, while providing a useful lesson for both employers and employees.
Privacy injunctions at work
The case involved the Managing Director of a group of companies, who successfully took out a privacy injunction against a Chief Executive of one of his group companies, after the Chief Executive, while negotiating his exit over apparent wrongdoing, threatened to publish to the world information ‘of a sexual nature’ relating to the Managing Director and his wife. Proceedings were anonymised. The Managing Director and the Chief Executive had previously had for many years a good relationship in which the Managing Director had regularly sent the Chief Executive messages of a sexual nature, a number of which referred to the Managing Director’s wife. While the Managing Director insisted the messages were a ‘joke’, the Chief Executive insisted the information was what it appeared to be, further alleging that the Managing Director and his wife had sexually harassed him.
An application was brought by the Chief Executive to amend the wording in the privacy injunction so as to allow him to publish the private information in an ET1 employment claim form as part of a prospective claim the Chief Executive intended to bring. The Managing Director resisted the application on the basis that he suspected the Chief Executive would abuse the legal protection given to claim forms to use the ET1 to reveal the private information to the world.
Sense of humour failure
The High Court looked carefully at the issues, examining carefully the competing rights of the parties. As is established procedure with privacy injunctions, Mr Justice Tugendhat balanced the Managing Director’s right to a private and family life under Article 8 of the European Convention of Human Rights (‘ECHR’) with the Chief Executive’s rights to freedom of expression and a fair trial under Articles 10 and 6 ECHR respectively. It was held that Employment Tribunals have their own procedure for ensuring that private information is protected in employment claims, and an Employment Tribunal would be far better placed to make any decision. On this basis, Mr Justice Tugendhat allowed the Chief Executive’s application, and varied the privacy injunction to allow the private information to be published in any ET1 claim form the Chief Executive issued.
What are the lessons here?
For one, there is the obvious point that work relationships should be treated as that. Lewd communications can be construed as harassing. It is impossible to judge whether or not on these facts the Chief Executive was genuinely harassed, or simply exploiting a lapse in professionalism by the Managing Director for his own gain. The point is that sending inappropriate messages at work is a hostage to fortune.
Two more nuanced points: (1) the Managing Director DID have an expectation of privacy relating to his work messages, which allowed him to prevent publication of private material to the world; but (2) this right to privacy WAS NOT all-reaching and balanced against the Defendant’s right to access justice and freedom of expression, was ultimately qualified.
Finally, and sensibly, the High Court recognised that the Employment Tribunal should rule on its own privacy procedures, and is the right place for an application should a prospective embarrassing claim be in the offing. Employment lawyers need to scrutinise the anonymity rules, as when embarrassing allegations are issued in the tribunal, it’s they who will be fighting over your company’s reputation.
The rules on anonymity and restricted reporting in employment tribunals are due to be overhauled as part of the Government’s planned reforms of the tribunal rules. We will be reporting further on this as final details of the reforms emerge.