Held, appeal dismissed; cross-appeal allowed. (1) The effect of the Human Rights Act 1998 was not that the Convention on Human Rights and Fundamental Freedoms supplanted or replaced domestic statutory or common law rules; rather it provided certain guarantees against the enforcement of those rules to the extent that would be incompatible with fundamental human rights. It was not necessarily the case that the answer given by the common law would be the same as that arrived at through a Convention analysis and, if the two were different, that did not necessarily mean that the common law answer was incompatible with the Convention. In the present case, the employment tribunal had fallen into error in failing to give any distinct consideration to the relevant language of rule 50 of the Employment Tribunals Rules of Procedure 2013 or to the common law open justice principle separate from its consideration of the Convention issues. The starting point should have been the common law, which held that open justice was a fundamental principle, but contained a key qualification that every court or tribunal had an inherent power to withhold information where it was necessary in the interests of justice to do so. The common law’s protection of the fairness of the court's proceedings extended to ensuring that those proceedings did not risk life and limb. There was no reason why the court should be prohibited from doing what it considered necessary to ensure fairness in the proceedings just because the risk was to someone outside the jurisdiction, and the fact that, as would often be the position in such a case, the person said to be at risk did not enjoy the protection of the Human Rights Convention could not be a decisive factor. Furthermore, derogations from open justice might be granted under common law principles in circumstances where the evidence did not meet the high threshold for interference on the grounds that there would be a risk to life, limb or security. In such cases, the court would look for evidence of a real and immediate risk of harm. The employment tribunal did so, but as part of its Convention analysis. It erred in concluding that there was a lack of objective evidence that publicity for the facts at stake would place the life and limb of the second respondent or the foreign-based employees at real and immediate risk. The second respondent was a party and a potential witness who harboured fears about the consequences for himself and others of giving evidence and proceeding with the defence of the claim in the absence of derogations, but the employment tribunal erred in giving no consideration to those fears because it confined its analysis to the Convention and concluded that the fears were not supported by objective evidence and were therefore immaterial for that purpose. It had conducted no balancing process. Furthermore, although a threat to abandon a claim or defence or part of it if anonymity was not granted could not be enough of itself to justify an application for that relief, the question of whether publicity would affect the willingness of a party or witness to take part in a case was in principle a relevant factor and the tribunal had erred in leaving that out of account altogether. It should have considered the second respondent’s concerns and assessed their reasonableness (paras 26–27, 29, 31, 32, 40–48, 79, 80).

(2) Once a court or tribunal had struck the common law balance on the “interests of justice” limb of rule 50, it would have to check its conclusions against relevant Convention rights. Since rule 50(2) expressly required the tribunal to give effect to the Convention right to freedom of expression, a decision to grant a derogation would therefore need to be reviewed for compatibility with the article 6 and 10 rights of the parties and the article 10 rights of the press and public. Under article 6 the question would be whether the restrictions on disclosure were justified because “the protection of the private life of the parties so require” or whether they were “strictly necessary” because “publicity would prejudice the interests of justice”. On the facts of the respondents’ case the relevant justifications under article 10(2) seemed to be “for the protection of the … rights of others” and “for preventing the disclosure of information received in confidence”. On the question of whether the derogations sought were “necessary … in order to protect the Convention rights of any person”, the employment tribunal had not explained what it meant by “objective evidence” and had misdirected itself when concluding that there was no objective evidence to support the second respondent’s fears for the safety of others; and that those fears were insufficient to “engage” his article 8 rights. Although a court or tribunal could not find a real risk that some event would occur just because a witness feared it would, the respondent’s evidence went beyond mere subjective fears which on any reasonable view was “objective” evidence, whatever view might have been taken of the weight to be given to it (paras 50–52, 63, 68, 79, 80).

(3) On the question of whether the derogations sought fell within the circumstances identified in section 10A of the Employment Tribunals Act 1996, where the hearing would involve taking evidence from any person which was likely to consist of information which had been communicated to him in confidence or which he had otherwise obtained in consequence of the confidence reposed in him by another person, the wording of rule 50(1) suggested that the test was whether a restriction on open justice was necessary in order to protect information of those kinds. That would be the test at common law, and the correct basis on which to approach that limb of rule 50. It could not be said that enforcement of a contractual duty of confidence depended on proof that it was legitimate for the owner to seek to keep the information confidential. The overall question was not simply whether the information was a matter of public interest but whether, in all the circumstances, it was in the public interest that the duty of confidence should be breached. Further, the relevant circumstances included the nature of the information and the nature of the relationship that gave rise to the duty of confidentiality. The employment tribunal failed to address those aspects of the test and thereby failed to have regard to relevant factors. That amounted to a misdirection in law. For all those reasons the application would be remitted for redetermination by a differently constituted employment tribunal (paras 69, 72, 77–78, 79, 80).