Employment law litigation

Public interest immunity is rarely used in a civil law claim.

In criminal law there are a number of statutes which cover the subject:

• Criminal Procedure and Investigations Act 1996 (CPIA 1996)
• The Criminal Procedure Rules 2005, Part 25
• Disclosure: Court of Appeal protocol for the control and management of unused material in the Crown Court, and
• Attorney-General’s Guidelines: Disclosure of Information in Criminal Proceedings

Under the CPIA 1996, sensitive “material must not be disclosed…to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly”. The main types of sensitive material are:

• National security/affairs and interests of state
• Journalists’ sources
• The prevention, detection and investigation of crime
• Material relating to children or young children

Whilst this is not strictly relevant in civil law claims it does help to show types of material that may be withheld.

In civil law there is not the same legislation. The civil procedural rules in the county court state:

"withhold disclosure of a document on the ground that disclosure would damage the public interest…"

CPR 31.19

The aim is to prevent disclosure of material which would harm the nation or the administration of justice.

Claims to withhold disclosure on this ground are relatively rare. A without notice application is required.

In my view a trade union giving advice would not fall under the heading of public interest immunity as it does not fall under the categories as listed above but I cannot find any case law that determines this one way or the others. I note that if HR professionals and tax advisors were forced to disclose their advice in New Victoria Hospital v Ryan [1993] ICR 201 and R (on the application of Prudential Plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1) then I can see no reason why a trade union official would be treated differently. However, I do not believe public interest immunity was specifically argued in the above cases.

According to the Employers Guide, any kind of employee counts.

Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme

Employees you can claim for

You can claim for employees on any type of employment contract, including full-time, part-time, agency, flexible or zero-hour contracts. Foreign nationals are eligible to be furloughed. Grants under the scheme are not counted as ‘access to public funds’, and you can furlough employees on all categories of visa.

It seems that there does not need to be a minimum number of staff:

Individuals can furlough employees such as nannies provided they pay them through PAYE, and sent HMRC an RTI submission notifying a payment in respect of the employee on or before 19 March 2020.