Rule 50 in the spotlight: privacy in the Employment Tribunal – a recent case and some practical tips

The key provisions in brief

Rule 50

Under r50:

“(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.

(2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.”

R50(3) contains a list of illustrative orders the Tribunal may make. That includes:

• R50(3)(a) – An order that a hearing, or part of a hearing be held in private.
• R50(3)(b) – Anonymisation orders applying to parties, witnesses, or other people referred to in proceedings. Anonymisation can relate to the course of the hearing, in the list, and/or any documents forming part of the public record, such as the judgment or reasons.
• R50(3)(c) – An order for measures preventing witnesses at a public hearing being identifiable by members of the public, such as screens.
• R50(3)(d) – A restricted reporting order (“RRO”) within the terms of s11 or 12 of the Employment Tribunals Act 1996 (“ETA”). Respectively, these sections relate to sexual misconduct/offences and disability (see below).

Under r50(5), an RRO must meet certain requirements:

“(a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification;

(b) it shall specify the duration of the order;

(c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and

(d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing.”

S10 ETA

The Tribunal can be invited to sit in private to hear evidence which is likely to consist of information which:

• Has been communicated or received in confidence.
• Would cause substantial injury to the Respondent.

S11 ETA

In cases involving allegations of the commission of sexual offences, s11 ETA (read with r50) enables the Tribunal to grant anonymity to those affected by or making an allegation of the commission of sexual offences.

In cases involving allegations of sexual misconduct, it enables the Tribunal to make an RRO having effect until promulgation of its decision, unless it is revoked earlier.

Sexual misconduct means “the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed”.

Sexual offence means any offence to which certain statutory provisions, including SO(A)A apply.

The RRO should prevent the reporting of any matter likely to lead members of the public to identify the person affected by (i.e. the alleged perpetrator), or the person making (i.e. the complainant), the allegation.

S12 ETA

In a “complaint which relates to disability in which evidence of a personal nature is likely to be heard”, s12 ETA (read with r50) enables the Tribunal to make an RRO having effect until promulgation of its decision, unless it is revoked earlier.

Evidence of a personal nature means “any evidence of a medical, or other intimate, nature which might reasonably be assumed to be likely to cause significant embarrassment to the complainant if reported”.

Sexual Offences (Amendment) Act 1992 (“SO(A)A”)

S1 grants lifelong anonymity to those alleging commission of sexual offences:

“(1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.

(2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime be included in any publication.”

Accused means charged with an offence.

No such protection is extended to alleged perpetrators, by virtue of their status alone. However, cases of ‘jigsaw identification’ – where revealing the identity of the perpetrator would be likely to lead to identify the person making the allegation – may necessitate an order being sought in relation to the alleged perpetrator under s1.

Z v Commerzbank AG [2024] EAT 11

Facts

The Claimant made discrimination allegations and alleged that a female colleague, Q, had sexually harassed and sexually assaulted him. After he was dismissed by Commerzbank, he brought a claim against it and other Respondents, including Q.

First instance

On application, restricted reporting and anonymity orders were made in respect of the Claimant and Q.

In relation to the Claimant, the Judge found that he was protected for life by operation of s1 of the SO(A)A. In respect of the anonymity order, she decided to make the same order in the interests of justice under r50(3)(b) to give effect to the SO(A)A. She also made a restricted reporting order (“RRO”) of indefinite duration under r50(3)(d). She considered freedom of expression under art 10 but held that it was proportionate to protect the Claimant’s art 8 right to privacy because “the test of strict necessity [in r50] is satisfied in the case of a victim of an alleged sexual offence”.

In relation to Q (and her husband), who did not enjoy the protection of SO(A)A, similar orders were made, but of limited duration until the promulgation of the liability judgment. The Judge referred to art 10 but found it was outweighed by Q’s art 8 rights. She held that post-promulgation restrictions fall outside the statutory exception in s11 ETA.

At the liability hearing, the Tribunal concluded that the Claimant’s account was false and made up. It dismissed all his claims.

The Respondents applied to lift the anonymity order and RRO (“the privacy orders”) in respect of the Claimant, and to extend them in relation to Q.

In respect of Q, the privacy orders were varied to have indefinite effect. Whilst not the subject of any appeal, Mr Justice Kerr expressed discomfort that the orders had no sunset or lapsing provision requiring a conscious decision to extend the duration of the order periodically.

In respect of the Claimant, the Tribunal revoked the privacy orders, subject to a temporary stay for any appeal. It referred to Mr Justice Soole’s decision in A v X UKEAT/0113/18, noting that there appears to be no direct authority on whether and if so how the Tribunal should give effect to the SO(A)(A).

The Tribunal concluded that there had been a material change of circumstances sufficient to enable the Tribunal to consider revoking the privacy orders:

“The exceedingly serious allegations on which the Claimant based his application for anonymity have been considered, comprehensively dismissed and found to be false and, in large part, made up. The foundation on which EJ Brown necessarily approached the application, namely that the Claimant was relying on sincere allegations advanced in good faith, has been exploded.”

The power to make the order lay under r50, not SO(A)A, and the power to revoke it under r29. The correct approach was to exercise its case management powers under r29 “in keeping with the spirit and intention” of SO(A)A. That involved recognising that protection under the SO(A)A is automatic and in principle permanent. The rationale being to avoid discouraging victims from making complaints for fear of distressing publicity. However, the Employment Tribunals Rules of Procedure enable the Tribunal to remove or relax that protection in special circumstances:

“We simply cannot accept that the law is powerless to separate the Claimant from a protection to which, as is now apparent, he was never entitled. It is to us unthinkable that our procedural law, founded on the overriding objective of deciding cases justly, could contemplate such a bizarre and unjust result.”

It went on to consider the balancing exercise of competing interests and concluded that art 10 clearly outweighed art 8:

“His is a most unusual story and we can well see why it would be of considerable interest to the press and the public. His identity would be a matter of legitimate interest given the Tribunal’s findings, in the way that Q’s would not. Against the interests of open justice and freedom of interest, we see no countervailing argument based on the Claimant’s Convention rights. If, as we have held, he did not have a sustainable right to litigate anonymously, it cannot be said that his right to respect for his private life would be violated as a consequence of the anonymity being lost.”

Appeal

The Claimant appealed the revocation of the anonymity order and RRO.

Mr Justice Kerr identified four strands of authority: the common law; art 8; SO(A)A and ETA read together with r50. He described this as a “complex interaction”.

There was no dispute between the parties regarding the principle of open justice and derogations from it applying the common law or art 8, balanced against art 10. There are many authorities dealing with this balancing exercise.

He noted that:

• The protection of s1 SO(A)A is statutory an therefore automatic – there is no need for the trial court to make an order mirroring it.
• By s1(4), the section does not prohibit publication of a report of a subsequent trial of the complainant for perjury or perverting the course of justice.
• There are provisions to allow removal or relaxation of the s1 protection, but these must not be given by reason only of the outcome of the trial.

Mr Justice Soole reviewed several authorities where it had been assumed that s1 SO(A)A applied to a Claimant making an allegation in the Tribunal.

He held that the words “an allegation has been made” in s1(1) SO(A)A “refer to the making of an allegation in circumstances which raise, or are intended to raise, a real possibility that a criminal charge will follow.”

Such an allegation need not be made by the alleged victim. For example, a complaint by a parent to police that their child has been sexually assaulted would trigger anonymity for the child.

He stated:

“the accurate formulation is that “allegation” in section 1(1) refers to a formal allegation made in the context of potential criminal proceedings, where a criminal charge may be brought. The paradigm case is a complaint to police. Other complaints made seriously and intended to or likely to be acted upon might be to a prosecuting authority, a safeguarding body, a social worker or social services department or other person with professional responsibility for taking the complaint further through the criminal justice system.

It follows that I do not think an “”allegation”” in section 1(1) includes, without more, an allegation made in civil, family or tribunal proceedings of conduct that, if committed, would be one of the sexual offences covered by the 1992 Act.“

The Claimant nor anyone else had made such an allegation against Q and the Judge at first instance was wrong to conclude he was entitled to the protection of the SO(A)A.

However, Mr Justice Soole commented, obiter, there will be a difficulty in other cases where the requirement in s1(1) is satisfied, for example where a serious complaint of a sexual offence has been made to police by the time the allegation of the same conduct is made in the Tribunal. In those circumstances, the only means of removing the protection of SO(A)A is in accordance with its provisions, for example if there is a subsequent trial for perjury or if a Justice of the Peace of a Crown Court Judge decides to relax the restriction.

He noted the cross reference to SO(A)A in s11(6) ETA as suggesting that parliament had in mind the possibility that the protection of SO(A)A could apply in cases where the same conduct is alleged as a criminal matter and in the Tribunal. In such cases, a privacy order would be made under r50.

The lacuna, however, is that an Employment Judge does not have the corresponding power given to a Justice of the Peace of a Crown Court Judge to remove the restriction in circumstances where the Tribunal decides a complaint is false. The solution may here lie with Parliament.

Albeit for slightly different reasons, the Tribunal at first instance was therefore correct to revoke the privacy orders in respect of the Claimant. It was “difficult to think of a more striking change of circumstances” and the art 10/art 8 balance had been struck correctly.

Some practical tips

• Privacy orders should be considered in any sex-related or sexual harassment claim
• In disability-related cases they are rarer
• The parties cannot agree to a departure from open justice – the Tribunal will not merely approve an agreed order, but will need to consider whether a derogation from open justice is necessary
• The interests of justice and protection of a person’s Convention rights are two distinct but often overlapping grounds upon which derogation from open justice can be sought
• The party seeking the privacy order has the burden of proving it is necessary to deviate from the principle of open justice
• Evidence should therefore be adduced in support of such an application e.g. medical evidence if an assertion is made of risk of damage to health, evidence of any complaint to police
• The Tribunal may need to hear witness evidence e.g. to determine whether revealing certain information could lead to jigsaw identification of a complainant
• A draft order should be prepared to accompany the application, with thought being given to precisely what is sought e.g. Anonymity? Of whom? An RRO? For how long?
• Applications should ideally be made at a preliminary hearing in advance of the final hearing
• There may be consequential impacts of a privacy order on case preparation e.g. redaction, labelling of individuals by letters, preparation of one bundle for the parties and a redacted bundle for the public

For a fuller discussion of this topic, join Bryony Clayton at Parklane Plowden’s Employment Grandstand on 20 March for her talk: The Limits of Open Justice: Anonymity and Privacy Issues in the Tribunal.