BBCIn the case of BBC v Roden ([2015] UKEAT 0385_14_1205) Simler J sitting as the Employment Appeal Tribunal overturned a remarkable anonymity order which had been made at the conclusion of Employment Tribunal proceedings to protect the reputation of a claimant who had misled his employers and reaffirmed the importance of open justice.

Background

The claimant had been dismissed after the BBC had been informed that serious allegations of a sexual nature had been made against him in relation to young men he had been in contact with in the course of his work.  He brought a claim for unfair dismissal.

Before his dismissal the claimant had given an account of an incident in Cornwall, ten years earlier, which he thought might be behind the issue.  He said that an allegation of inappropriate touching had been made but he had been cleared by an internal disciplinary investigation.

On 6 February 2014, the Employment Judge made an order granting anonymity to the claimant.  The judge found that the the claimant’s identity should be protected throughout the hearing because allegations of serious sexual assaults, which were not in issue in the proceedings, would be raised at the hearing.  The claimant would not have an opportunity of a finding that these allegations were not proved.

During the proceedings it emerged that G had been summarily dismissed from his employment in Cornwall on 13 July 2005 for gross misconduct following the distribution of a photograph that showed him simulating oral sex with a student dressed as a children’s television character in the presence of another dressed as a different character.

The Judge found that the claimant had misled the BBC about this incident and that this was a fundamental breach of his employment contract.  The claim for unfair dismissal therefore failed.

The BBC subsequently applied to the judge to set aside the anonymity order.  In a judgment given on 26 August 2014, the employment judge refused this application.  The BBC appealed to the Employment Appeal Tribunal.

Judgment

Simler J noted that the applicable legal principles were not in dispute.  Rule 50 of the Tribunal Rules of Procedure 2013 [pdf] provided that the Tribunal could make an order restricting the public disclosure of any aspect of the proceedings “so as it consider necessary in the interests of justice or in order to protect the Convention rights of any person”.  Such an  order included an order that the identities of parties or witnesses should not be disclosed.

The principles of open justice were paramount. Reference was made to a number of cases, in particular, Global Torch Ltd v Apex Global Management Ltd [2013] EWCA Civ 819.

The BBC argued that the Judge was wrong in failing to start with the paramountcy of open justice.  He should have considered whether a derogation was strictly necessary and should have concluded that the weight of the Article 8 rights in play were low and outweighed by the public interest in open justice.

The claimant argued that the decision was essentially a discretionary case management decision and that there was no identifiable error of law.

Simler J held that the making of an anonymity order reconciling competing human rights was not an exercise of discretion at all.  However, she also considered that the judge had erred in law for four reasons.

First, the Judge failed to carry out the required balancing exercise.  Instead, he singled out one factor (the risk of public misunderstanding) and concluded it outweighed any other factor. He made no assessment of the public interest in full publication.

Second, the only reason for the continuing of the anonymity order was an invalid one

in the context of criminal investigations into sex abuse allegations, the public interest in open justice is regarded as outweighing the Article 8 rights of a person suspected of these serious criminal offences, and the public has accordingly become accustomed to the early identification of such persons (even before charge in many cases) and is trusted to distinguish between an allegation and a finding of guilt [40].

The finding that there would be devastating consequences for the claimant as a result of public misunderstanding is a finding that was unsupported by any evidence.

Third, the judge erred in his assessment of the weight to be attached to the respondent’s Article 8 rights.  The weight of those rights were low because

  • He had chosen to bring proceedings in a public tribunal knowing that he had not been honest with the BBC about his earlier dismissal and that these facts might come to light.
  • He was found to have made material false statements to the BBC.

Fourth, the judge failed to take into account the particularly strong countervailing reasons in the public interest, protected by Article 10, why the BBC ought not to be inhibited from identifying the respondent.  A number of other bodies were interested in knowing the outcome as well as future employers of the claimant’s services.  The BBC’s rights had been vindicated and its wish to have full publication.

Simler J rejected the submission that there was no public interest in the publication of a private employment claim, relying on F v G [2012] ICR 246 at [49] to the effect that

the default position in English law is and should be that it is in the public interest that the full decisions of courts and tribunals, including the names of the parties, should be published. 

In short, the judge failed to carry out a proper balancing exercise or to take account of relevant considerations and relied on an invalid reason for granting the order which was set aside [48].

Finally, Simler J refused to remit the case to the judge for reconsideration.  Once the risk of reputational damage to the claimant based on public misunderstanding of sexual allegations was disregarded, there was no rational basis for making anonymity order:

The mere publication of embarrassing or damaging material is not a good reason for restricting the reporting of a judgment, as the authorities make clear [50].

The appeal was allowed and the respondent was to be identified by name.

Comment

This judgment is a powerful restatement of the importance of open justice and the need to carry out a proper balancing exercise when orders which interfere with it are sought.

The English law treats the principle of open justice as a “paramount” one and, in ordinary circumstances, will not permit restrictions for the sole purpose of protecting the reputational rights of parties.  The law presumes – somewhat unrealistically – that the public is capable of distinguishing between allegations and proven charges.

When the balancing exercise was considered in this case, it was clear that the factors were all one way.  The position of the claimant was particularly weak as he had been found to have misled the BBC about very serious matters which were directly relevant to the proceedings.  His privacy rights were not engaged in the sense that there was no suggestion that his identification would reveal private information about him.

The judgment provides a clear and helpful exegesis of the principles relevant to anonymity applications and should provide a useful reference point for consideration of these issues in future cases.