Since February 2017, all tribunal judgments and written reasons entered on the public register are published online in accordance with the Employment Tribunal Rules (ET Rules). The result of this is that anyone who has the foresight to conduct a Google search on a potential employer or employee would be able to find and read any cases that have been brought against that employer or whether that employee has ever brought an employment tribunal claim.
The tribunal has the power under rule 50 of the ET Rules to make an order preventing or restricting the public disclosure of any aspect of the proceedings as it considers necessary in the interests of justice and to protect the rights of any person under the European Convention on Human Rights (ECHR). This can include anonymising personal data during proceedings or in documents which form part of the public record. This is a particularly important power of the tribunal as you could be minding your own business in your employment only to discover that your name has been mentioned in a judgment on the internet for all to find.
It is easy to see how naming a person in a judgment may infringe their right to privacy under Article 8 of the ECHR. However, an order anonymising their personal data in proceedings may consequently interfere with Article 6, which states that judgments shall be pronounced publicly, as well as the right to freedom of expression under Article 10. In deciding whether or not to grant an anonymity order, a tribunal must balance the competing rights under the ECHR and also consider the principle of open justice.
The Employment Appeal Tribunal (EAT) recently considered an application for an anonymity order by an individual who was named and referred to in an unfavourable manner in an Employment Tribunal (ET) judgment, but was not a party to, nor a witness in, those proceedings (TYU v ILA Spa Ltd EA-2019- 000983-VP).
Unfair and wrongful dismissal proceedings were brought against ILA Spa Ltd by two of the appellant’s relatives. The appellant, whom we shall refer to as Ms X, had also worked for the respondent company but was not involved in the dismissal proceedings. The judgment had named Ms X and indicated that she had been suspected of dishonesty offences in the workplace, which had been referred to the police by her employers, and that other employees at ILA Spa Ltd had informed an internal investigation that they were frightened by intimidatory behaviour involving her. Ms X made an application under rule 50 of the ET Rules for an order that her name be redacted from or anonymised in the judgment (an anonymity order).
The ET had in the first instance decided that Article 8 was not engaged in these circumstances as “she could not have had any reasonable expectation of privacy because information revealing her identity had been discussed in a public trial” and, alternatively, that if the Article 8 rights were engaged they did not outweigh the countervailing rights protected by Articles 6 and 10, and so dismissed the application. Ms X appealed to the EAT, which confirmed:
rule 50 applications may be made after judgment has been handed down (X v Y [2021] ICR 147) and that an application may be made by a non-party who contends that their ECHR rights require protection
with regards to the ET’s decision that Ms X’s right to privacy was not engaged for the reason stated above, that the ET judge had erred in law as he had wrongly regarded the prior publicity fatal to her application. The EAT specifically referred to the prospect of damage to Ms X’s reputation as being “su iciently self-evident for the purposes of Article 8 engagement, in particular
given that a link to the Dismissal Judgment features prominently in search engine results on her name and given the contents relate to her suspected dishonesty and intimidatory behaviour in the workplace”
that the ET had failed to conduct a balancing exercise between the proportionality of interfering with the competing ECHR rights and that it had failed to consider whether measures could be adopted that would be less intrusive of Ms X’s Article 8 rights.
The EAT allowed the appeal and remitted to the ET the question of whether the rule 50 application should be granted as there was, at present, a lack of fact-finding as to the extent of the impact of the interference of Ms X’s Article 8 rights. In the interim, the EAT granted an extension of the ongoing temporary anonymity order pending the remitted determination.
It is not difficult to foresee circumstances that may arise where individuals may wish to make a similar application under rule 50, especially in this day and age where employers and employees alike are likely to perform internet searches on potential candidates/companies and we are constantly reminded to be wary of our digital footprint. Employers note, your managers may not want their names mentioned in judgments where their behaviour in internal disciplinary or grievance procedures has been scrutinised.
