Anonymity and open justice in the Employment Tribunal

Since February 2017 Employment Tribunal decisions have been available online. It is a valuable resource but it also gives rise to the risk of victimisation, reputational damage and invasion of privacy.

On 4 January 2019 the Employment Appeal Tribunal gave judgment in Ameyaw v Pricewaterhousecoopers Services Ltd UKEAT/0244/18.

The Employment Tribunal had made adverse findings about the Claimant’s conduct at a Preliminary Hearing. Subsequently, she applied for the judgment to be removed from the internet or for her name to be anonymised on the basis that her right to a private life under Article 8 of the European Convention on Human Rights was infringed. The application was refused and the Claimant appealed.

The EAT held that the Tribunal has no power to decide that a judgment or, other than in case of national security, the written reasons should not be publicly available.

In terms of anonymity, Rule 50 of the Employment Tribunal Rules of Procedure 2013 gives the Tribunal discretion to prevent or restrict the public disclosure of any aspect of the proceedings if it is in the interests of justice or necessary to protect a person’s ECHR rights. The names of parties, witnesses or anyone mentioned can be anonymised or reporting can be restricted in respect of confidential information, sexual misconduct allegations, or evidence of a personal nature in a disability-related complaint.

Naturally, publicity may deter parties from seeking redress or running the risk of defending damaging allegations and losing. Unless there is clear and cogent evidence that harm will be done to the party seeking the restriction, the principle of open justice will not be outweighed.

In Ameyaw it was said that the Claimant could have no expectation of privacy about what took place during a public hearing, but even if Article 8 was engaged, it did not outweigh the principle of open justice. There had been no previous applications for anonymity and the application was made more than a year after judgment.

The publication of Tribunal decisions is something that both employees and employers have to contend with and ought to take into account when weighing up the risks of proceeding to a public hearing or even when deciding whether to request written reasons at its conclusion.

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