Third Party Anonymity Order rights before ET
The Appellant appealed the refusal of her application under Rule 50 of the Employment Tribunal Rules of Procedure 2013 for an order that her name be redacted or anonymised in an earlier judgment in unfair and wrongful dismissal proceedings brought by two of her relatives.
She had also worked for the Respondent but was not a party or a witness to those proceedings. The judgment indicated that she had been suspected of dishonesty offences in the workplace, which her employers had referred to the police and that employees told an internal investigation they were frightened by intimidatory behaviour involving her.
The Employment Appeal Tribunal (‘EAT’) allowed the appeal, holding that the Employment Tribunal (‘ET’) had erred in law: (i) in its conclusion that the Appellant’s rights protected by Article 8, European Convention on Human Rights (‘ECHR’) were not engaged; and (ii) in the alternative conclusion that if Article 8 rights were engaged, they did not outweigh countervailing rights protected by Articles 6 and 10 ECHR and common law principles of open justice.
As regards the first issue, the ET erred in deciding that as information revealing her identity had been discussed at the public hearing of the dismissal claims, this was necessarily fatal to the engagement of the Appellant’s Article 8 rights. It was not determinative, in particular as she relied upon the reputational aspect of Article 8 and the damage and associated distress occasioned by internet searches on her name, including by prospective employers, linking to the judgment.
As regards the second issue, the ET erred in failing to identify: the Article 8 rights in play, the nature and extent of the impact on the Appellant, the proportionality of the interference with her Article 8 rights if her application was rejected and the proportionality of the interference with countervailing open justice rights if the application was granted. In turn, the requisite balancing exercise, assessing the degree of interference with the competing rights was not conducted. The EAT substituted a finding that the Appellant’s Article 8 rights were engaged in relation to the right to protection of reputation, given the contents of the judgment and her lack of formal involvement in the ET proceedings; and also in the privacy aspect, given the reference to police involvement. However, because of the lack of fact-finding as to the extent of the impact alleged by the Appellant and because more than one outcome of the balancing exercise was possible, the question of whether the Rule 50 application should be granted had to be remitted to the ET
Heather Williams QC DHCJ
Judiciary
European Convention on Human Rights
European Convention on Human Rights, Employment Tribunal Rules of Procedure 2013 50
England and Wales
Employment, Human Rights
Updated: 01 November 2021; Ref: scu.668231