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Could commercially sensitive information be made available?

Employment Matters e-update – May 2022

Overview

As well as potential damage to reputation, commercially sensitive information referred to will generally also become public.  In some cases, the parties may be able to agree to certain irrelevant information being redacted and there is the ability to apply for an anonymity order (see above), however the application of such orders is limited.

In Frewer v Google UK Ltd, Frewer was dismissed for allegations of sexual harassment and brought a claim for detriment and automatic unfair dismissal under whistleblowing legislation.

Prior to the hearing, Google applied to the ET to have the names of its clients anonymised in the documents.  The ET accepted the request on the basis that the information was commercially sensitive and, as it was irrelevant to the case, did not need to be disclosed.  Client names were therefore anonymised and sensitive information redacted.

Frewer appealed to the EAT which held that the names of the clients being irrelevant was wholly insufficient to justify an anonymisation order.

In relation to the redactions, the EAT held that the ET had failed to properly consider if all of the documents disclosed (of which there were some 3000) were actually needed at all.  It would be preferable to exclude unnecessary documents and limit the volume of disclosure. In the view of the EAT if a document was relevant to the case, the principle of open justice may require it to be disclosed without redaction. The EAT remitted the case back to the ET to reconsider the application, but in doing so indicated that at least two of the disputed entities should be named.

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