The current President of the Employment Appeal Tribunal, Underhill J, in a judgment which contains a comprehensive review of the law on the use of Restricted Reporting Orders and Anonymity Orders in the Employment Tribunal (F v G (Practice and Procedure: Reporting Restriction order) UKEAT/0042/11/DA), has anticipated the arrival of the Extended Restricted Reporting Order. This is an order which derives from either EU Law or the European Convention of Human Rights. The scope of such an order is potentially far wider than an order under the statutory regime for anonymisation in the Employment Tribunal (found at rule 49 and 50 of the Employment Tribunal Rules of Procedure), or an Anonymity Order.
Rule 49 provides that in proceedings where there is an allegation of the commission of a sexual offence, the Employment Judge must omit or delete anything from the public record (the Register, the judgment, or other record of the proceedings) which might lead to members of the public identifying any person affected by or making the allegation. Such protection is permanent. Rule 49 does not affect the reporting of such allegations by the media, unless there is also a Restricted Reporting Order under Rule 50 in place.
Rule 50 provides that an Employment Tribunal has a discretion to make a Restricted Reporting Order in a case which involves allegations of sexual misconduct, or in a disability discrimination claim where evidence of a personal nature is likely to be heard. Such an order may be made to protect an alleged victim, an alleged perpetrator or a witness. It is a criminal offence for any identifying matter to be published or included in a newspaper or magazine or programme in contravention of a Restricted Reporting Order (s.11 and s.12 of the Employment Tribunals Act 1996). A Restricted Reporting Order only offers temporary protection, and lapses after both liability and remedy have been determined by the Employment Tribunal. The Employment Tribunal proceedings are still conducted in public, and a journalist or member of the public who has been present during the hearing is free, once the proceedings are over, to report what has occurred.
The limited protection of privacy offered by the Employment Tribunal Rules has long been regarded as unsatisfactory, and it was for this reason that individuals affected by Employment Tribunal litigation (both parties and non-parties) began to rely on their Article 8 rights, and the so-called Anonymity Order arrived. Since 2003 it has been recognised that an Employment Tribunal has wide powers to take appropriate steps to anonymise the public record in circumstances where neither Rule 49 or Rule 50 applies. These powers are derived from Article 8 of the European Convention of Human Rights and EU Law.
An Anonymity Order usually prevents an Employment Tribunal from publishing information (whether in its judgment or on the Register) which might lead to the identification of the parties, or other persons requiring protection. Such an Order can be permanent, although this may not always be appropriate.
Yet, in the era of super-injunctions and Twitter, the President highlighted the limited protection offered by an Anonymity Order. An Anonymity Order only prevents an Employment Tribunal from publishing information which might lead to the identification of the parties or other persons. It does not prevent anyone else, including the parties, from publishing information derived from the Employment Tribunal hearing – even if the effect of publishing that information would be to circumvent the Anonymity Order by allowing third parties to identify the individuals who have been anonymised in the public record of the proceedings.
It was for this reason that that the President anticipated the arrival of the Extended Restricted Reporting Order. Such an order is effectively a hybrid between an Anonymity Order and a Restricted Reporting Order. Like an Anonymity Order, its powers are derived from human rights or EU Law and the protection it offers can be permanent. And like a Restricted Reporting Order made pursuant to Rule 50 it can restrain others (including the media) from publishing information which might lead to the identification of the individuals in question who have been anonymised as a matter of public record. It is of interest that because such an Order derives its powers not from statute, but from human rights or EU Law, it is unclear what, if any, criminal sanction would apply to someone who contravened such an Order.
The President emphasised that his judgment should not be regarded as “sanctioning anonymisation in any case where a party or witness may suffer embarrassment by publication of intimate details of their private lives”. Any applicant for an Anonymity Order, or even an Extended Restricted Reporting Order, will still need to satisfy an Employment Tribunal that their interests under Article 8 outweigh the principle of open justice (including the protection given to this principle under Article 6); the right of the press (and others) and the interests protected by Article 10; and the right of the individual who has had their rights vindicated after a hard-fought piece of litigation to be able to report and produce the evidence of that victory without constraint.
Claire Darwin is a barrister at Matrix Chambers specialising in employment law.