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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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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