Frewer v Google UK Limited and Others 
What was it about?
In Frewer v Google the Claimant had been dismissed for alleged sexual harassment. He claimed that the dismissal was really due to his making protected disclosures, for which the Respondent was now seeking anonymization.
The Employment Tribunal’s view
In the first instance, the ET made an order for the Respondent, granting anonymization of client names and redaction of commercially sensitive information.
What did the Employment Appeal Tribunal think?
However, the EAT found that the open justice principle hadn’t properly been considered or applied. As such, the EAT found that ordering the anonymisation of all clients of the Respondent had been disproportionate to the interests of justice.
The EAT found further that the ET had erred in failing to apply the necessary step by step consideration of the application for redaction of documents described in the order as being “commercially sensitive” and “irrelevant”. The EAT drew a distinction between information that is said to be “commercially sensitive” and that said to be “confidential” and held that material can be commercially sensitive without being confidential.
What are the lessons for employers?
Disclosure before the Court is an important matter to get right. On the one hand, you risk redacting crucial evidence which can hamper the persuasiveness of your submissions, but on the other hand, you risk disclosing personal data of a third party without their consent – thereby breaching the GDPR.
The present case shows that on the run up to a Tribunal, when considering disclosure, the Respondent (and the Claimant, for that matter), need to be very deliberate in their reasoning both for why certain evidence should be included – it is relevant to the proceedings, even if detrimental to the case of the party who discloses it, and as to why certain evidence should not
be included – where it is protected under GDPR regulations or legal privilege.