When should an Employment Tribunal consider making an anonymisation order?
The recent Employment Appeal Tribunal case of X v Y provides a useful reminder of when an Employment Tribunal should make an anonymisation order, and the relevant considerations which should be taken into account.
X v Y UKEAT/0302/18/RN
The Claimant brought claims against his employer for unpaid wages and holiday pay. The claims were presented outside of the relevant jurisdictional time limits. Due to the Claimant's ill health, his father, acting as his representative, gave evidence that the reasons for being out of time involved the Claimant’s difficulties with his transgender status, mental health, PTSD and complex trauma he had suffered.
The Employment Tribunal (ET) granted an extension of time and the Claimant was ultimately successful with his claims. The ET's written judgment referred to the Claimant's transgender status and his mental health. After reading this, the Claimant made an application 10 days later for various paragraphs to be redacted. He had not expected his transsexual status, or medical issues, to be referred to in the judgment. However, the ET refused his application on the basis that the judgment accurately reflected the evidence given and no application had been made at the Hearing. The Claimant appealed to the Employment Appeal Tribunal (EAT).
What is an anonymisation order and when are they made?
Whilst Preliminary Hearings usually take place in private, Final Hearings will almost always be public, in line with the principle of open justice. This means that any member of the public can attend the Hearing to observe. In some high profile cases, this may include attendance by members of the press. In certain circumstances, an anonymisation order may provide that the identities of specified parties, witnesses or other persons who are referred to in the proceedings should not be made public, either during the course of any hearing, its listing, or in any documentation otherwise forming part of the public record. It may also ensure that certain documents are kept private.
A Tribunal has power, under Rule 50 of the Employment Tribunal Rules 2013 (ET Rules), to make an order with a view to preventing or restricting the public disclosure of any aspect of a claim insofar as it considers it necessary:
- in the interests of justice;
- in order to protect the human rights of any person; or
- in the circumstances identified in the Employment Tribunals Act 1996, which permit Tribunals to sit in private to hear evidence which could not lawfully be disclosed, is confidential or would cause substantial injury to the undertaking in which the witness works.
However, the granting of anonymisation orders also engages various rights found in the European Convention on Human Rights (ECHR). Previous case law demonstrates that three Convention rights are engaged and have to be reconciled before any order can be made.
First, Article 6, which guarantees the right to a fair hearing in public with a publicly pronounced judgment except where, to the extent strictly necessary, publicity would prejudice the interests of justice. Secondly, Article 8, which provides the qualified right to respect for private and family life. Thirdly, Article 10, which provides the qualified right to freedom of expression. Such "Qualified" rights can be encroached upon where it is proportionate to promote a specific legitimate aim.
In the light of this, a Court must carry out a balancing act of these rights, taking into account the comparative importance of the specific rights being claimed in the individual case, and the justifications and proportionality of restricting them. The principle of open justice has been identified as paramount when balancing these rights and there must be clear, cogent, and proportionate grounds before an ET can take any steps which conflict with the principle.
What did the EAT decide?
The EAT allowed the Claimant's appeal.
Whilst it was noted that it might be regarded as somewhat harsh to criticise the ET Judge for failing to do something that no one had asked him to do, Regulation 50(1) of the ET Rules provided that a Tribunal may, at any stage in the proceedings, make an order with a view to preventing disclosure information “on its own initiative or on application”. Therefore, there could be cases, no doubt rare, in which it was incumbent upon an ET to consider, of its own volition, whether an anonymisation order should be made even if the effected party did not ask for one. The EAT held that it was absolutely clear that it was proportionate to grant anonymisation in this case.
What can employers take from this?
Whilst this case relates to a Claimant's application, it provides helpful guidance on when anonymisation orders may be granted. Employers often wish to avoid reputational damage that can follow Tribunal proceedings. However, this case shows the emphasis that Courts place on the principle of open justice and the extent that an employer will need to go to if they wish to convince a Judge that the principle of open justice should be restricted. Despite this judgment, it is worth noting that there is no definite rule that all cases dealing with transsexual status or sensitive mental health issues must be anonymised.
There will be rare cases where an ET should consider making an anoymisation order on its own initiative, as opposed to waiting for the parties to make an application. This duty is a continuing one. It will be even rarer for a Tribunal to hold that it is proportionate to delete sections of a judgment where an anonymisation order is available to protect an individual's privacy rights.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy or Rachael Lloyd to discuss any issues you are facing.