Anonymity order may be made even if identity revealed earlier at public hearing (TYU v ILA Spa Ltd)

A tribunal may make an anonymity order to protect a person’s Article 8 right to a private life, in respect of a person who is neither a party nor a witness to proceedings, even if their identity was discussed earlier at a public hearing. If the aspect of the right to a private life relied upon is ongoing or future (yet to occur) reputational damage, and/or the impact on the applicant or family members of repetition of the material in question, the existence of prior publicity will be less significant than would otherwise be the case, according to the EAT.

 What are the practical implications of this judgment?

The extent to which unproven allegations about the conduct of a person who is neither a party nor a witness to employment tribunal proceedings (and therefore does not have the opportunity to refute the allegations made about them in those proceedings) should be aired in tribunal proceedings is an important consideration for tribunals. In this case the appellant had the not uncommon worry about future employers searching the employment tribunal judgment database for her name and discovering, in a judgment, allegations made against her (stating that she had been involved in a theft and in threatening behaviour) which she had had no opportunity to refute.

This decision acts as a reminder that:

• the right to protection of reputation constitutes an element of private life that falls within the scope of Article 8 of the European Convention on Human Rights (ECHR) (giving rise to an employment tribunal’s power to make an order under ET Rule 50 with a view to preventing or restricting the public disclosure of any aspect of tribunal proceedings to the extent that the tribunal considers it necessary in order to protect that right)
• the Article 8 right to privacy can also embrace the right to prevent unwanted intrusion into one’s personal space by repetition of known facts where it adds to the overall intrusiveness
• the test involves an objective assessment of what a reasonable person of ordinary sensibilities would feel if they were placed in the same position and faced with the same publicity
• Article 8 is engaged by the publication of a judgment containing adverse imputations, attaining a certain level of seriousness, about a named third party capable of adversely affecting their enjoyment of their private (or family) life (including activities of a professional or business nature)
• the engagement of Article 8 will depend upon the extent to which the judgment in question is potentially damaging to the applicant’s reputation and, if that is the case, whether the loss of reputation was a foreseeable consequence of their own actions
• Article 8 can be engaged, and in an appropriate case a Rule 50 order can be made, even in cases in which the allegations have been made in evidence at a prior public hearing or are otherwise in the public domain
• a person’s status as a non-party and non-witness (i.e., someone who has not chosen to be involved in the proceedings) is a relevant factor, in particular where Article 8 is relied on in relation to the protection of reputation.

The judgment indicates that the existence of prior publicity is likely to be highly significant, when assessing whether Article 8 is engaged to protect private information but will be less significant where the aspect of a right to a private life relied upon is ongoing or future (yet to occur) reputational damage and/or the impact on the applicant or family members of repetition of the material in question.

It should also be remembered that, if Article 8 is engaged, when considering what, if any, order to make, the tribunal still needs to undertake a balancing exercise, applying a proportionality test, weighing up the justification for interfering with or restricting that right and the competing rights to a fair and public hearing under Article 6 and the right to freedom of expression under Article 10. That exercise will need to be based on evidence and will take into account factors such as the extent of the reputational damage, actual and/or anticipated, and the impact on the applicant. The tribunal should also consider what other measures could be adopted that would have a less intrusive impact on the rights involved.

Case details

• Court: Employment Appeal Tribunal
• Judge: Heather Williams QC (sitting as a Deputy Judge of the High Court)
• Date of judgment: 16 September 2021

Pro Employment Law

Formed in 2017, following significant legislative changes designed to increase competition within the legal services marketplace, Pro Employment Law is a progressive set of barristers’ chambers, consisting only of experienced employment law barristers, offering a full range of specialist advisory, case management, and advocacy services directly to the public through the Public Access scheme. We supply our legal services exclusively in the area of Employment Law to clients located across England & Wales. All of the legal services we supply are covered by professional indemnity insurance with Bar Mutual.