Ameyaw v Pricewaterhousecoopers Services Ltd: EAT 4 Jan 2019

No power in ET to remove record from Register

PRACTICE AND PROCEDURE – Restricted reporting order
PRACTICE AND PROCEDURE – Case management
Practice and Procedure – Case Management – Restricted Reporting Order/Anonymity – Rule 50 ET Rules 2013
The Appellant applied for an earlier ET Judgment in the proceedings (sent out to the parties and entered in the public Register over a year before) to be removed from the Register as she objected to the fact that it was publicly accessible on-line; alternatively, she asked for an Anonymity Order to be made under Rule 50 of the ET Rules. The ET refused both applications, holding that it had no power to remove a Judgment from the Register and that Rule 50 provided no basis in the present case to overrule the principle of open justice. The Appellant appealed.
Held: dismissing the appeal
The ET had correctly held that it had no power to exclude or remove a Judgment from the public Register. By Rule 67 of the ET Rules, it was required that, subject to Rules 50 and 94, every Judgment and document containing Written Reasons for a Judgment was entered on to the public Register. Although the ET could decide not to enter Written Reasons for a Judgment in a national security case (Rule 94), there was no corresponding power under Rule 50.
The real issue raised by the appeal was whether the ET had properly exercised its discretion in refusing to make an Anonymity Order under Rule 50. The Appellant had contended that such an Order was necessary to protect her Article 8 ECHR rights. Her application related, however, to a Judgment reached after an open Preliminary Hearing at which the ET had considered an application to strike out the Appellant’s claims on the basis of her conduct at an earlier (closed) Preliminary Hearing. The matters to which the Appellant objected had, therefore, been the subject of discussion at a public trial of the strike out application; Article 8 was not engaged – the Appellant could have had no expectation of privacy in that regard.
Even if that was wrong, it was for the ET to carry out the requisite balancing exercise (see Fallows and Others v News Group Newspapers Ltd [2016] ICR 801 EAT) and, in the particular circumstances of this case, it had been entitled to take the view that the principles of open justice and the interests arising from Articles 6 (fair trial) and 10 (freedom of expression) were not outweighed by the Appellant’s interests under Article 8 ECHR such that there should be any restriction on publicity under Rule 50.
In reaching its decision, as an exercise of its case management discretion, the ET had been entitled to decline to consider unsigned manuscript notes from the closed ET hearing. As for the adequacy of the reasons provided for its decision, these were proportionate to the significance of the issue to be determined: the parties were not strangers to the background to that decision and the ET had made clear (i) its view that it had no power to exclude the Judgment from the public Register, and (ii) its conclusion on the question whether the principle of open justice should be curtailed in this case.

Eady QC HHJ
[2019] UKEAT 0244 – 18 – 0401, [2019] WLR(D) 116, [2019] ICR 976
Bailii, wLRD
Employment Tribunal Rules 2013 50 67
England and Wales
Cited by:
CitedL v Q Ltd CA 9-Aug-2019
A claim had been brought alleging discrimination. The parties had been anonymised. An order had been made for only a redacted form of the judgment to be published. The claimant appealed, saying that it should be redacted. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 31 October 2021; Ref: scu.631847