In the overwhelming majority of cases, Employment Tribunal hearings are held in public, and their decisions made available on the internet for everyone to read. However, there are occasions when it is appropriate to prevent or restrict the public disclosure of certain aspects of the proceedings, usually by anonymising the identities of specified parties, witnesses or others.
The tribunals and courts often have to carry out a difficult balancing act when deciding whether to grant such orders. On the one hand there is the common law principle of open justice, and the rights to a fair trial and freedom of expression under the European Convention of Human Rights (ECHR). On the other hand, there is the right to privacy enshrined in Article 6 of the ECHR. Considerations such as the risk of being wrongly believed of having committed a crime, and being handicapped in finding new employment have not been found to be sufficient to engage an anonymity order in the past (See BBC v Roden and Ameyaw v Pricewaterhousecoppers Services Ltd).
In the recent case of A v Burke and Hare, a stripper failed to overturn a decision of the Employment Tribunal to grant an anonymity order. Ms A was claiming for unpaid holiday pay against her former employer (a strip and lap dancing bar). She sought to keep her identity secret in the proceedings because she was intending to pursue a career outside of the industry. She argued before the Employment Tribunal that she would be at risk of stigmatisation and sexual violence if she was identified. She said she had performed under a stage name and other staff did not know her name, but that she had been threatened when working as a stripper and called insulting sexualised names.
The Employment Tribunal judge rejected her application, saying that she should have known a public judgement would be issued in her name, and that she should have foreseen that working as a stripper could harm her career prospects.
Ms A appealed to the EAT, arguing that strippers are stigmatised and that she had a right to preserve her honour and reputation. She said that her choice to work as a stripper was irrelevant, and that she wished to leave her life as a stripper behind her, and her employment prospects would suffer if her name was published in a judgement. She also said that she would discontinue her claim if an order was not granted.
The EAT held that stigmatisation alone was not enough, and reiterated the principle from a Court of Appeal case (R v Legal Aid Board ex parte Kaim Todner) that embarrassment and reputational damage are ordinary concomitants of litigation. The EAT did acknowledge that if there was a material risk of continuing verbal abuse and sexual assault different considerations would arise, but that Ms A had not appealed the Tribunal’s conclusion that there was not enough evidence that she would suffer such harm. There was no clear and cogent evidence of the harm that would be done, and so the appeal failed.
The EAT also did not set great store on the contention that there was a high likelihood that her past would become widely known if there was a judgement issued in her real name. No evidence was given about how widespread the practice was of employers and recruitment agents using the online register of Tribunal and EAT judgements.
The EAT did, however, agree that Ms A had not forfeited her right to rely on her Article 8 right of privacy because she had worked as a stripper given that she had worked under a stage name and withheld her name from her co-workers.
Ms A’s threat to withdraw her claim if she did not get the order, which would deny her access to justice, cut no ice with the EAT. It held that the law did not provide access to justice whatever the cost. In addition, the Employment Tribunal had to find a reason why Ms A should not be identified and had to assume that it was in the public interest to publish her name. That was the default position. The EAT did grant Ms A’s application for anonymity in relation to her appeal though, given that public interest to open justice is at its strongest in relation to the merits of a case, and less so at the stage of a preliminary application.
This case is a reminder that the principle of open justice is a high hurdle to jump, and that compelling evidence is needed to obtain an anonymity order.
Find out how we can help. Our partner, Jon Dunkley, heads the Wollens specialist Employment Department. Contact him today for an informal chat, without obligation on 01271 342268 or via email at [email protected].