In the case of Ameyaw v PriceWaterhouseCoopers ([2019] UKEAT 0244_18_0401) a former senior manager failed in a bid to win anonymity in a published judgment from an Employment Tribunal, and in an application for two decisions to be removed from public records available on the internet.
The claimant, Yvonne Ameyaw, had made claims against her employer, which the company had them sought to have struck out on the basis of her allegedly “scandalous and vexatious conduct” at a preliminary hearing.
The employment judge hearing the strike-out application dismissed it, but considered that the reasons given by the judge at the preliminary hearing amounted to findings of fact that Ms Ameywa had acted disruptively at that hearing.
That judgment was entered in the public register, which is accessible online. Ms Amayaw’s claims against PWC Services were later dismissed following a full hearing.
Ms Ameyaw then applied for an order that the judgment in the strike-out application should not be entered in the register, and that the final judgment should not be entered in the register, or, alternatively, that she should be anonymised in both decisions.
Regional Employment Judge Peter Hildebrand rejected the applications, saying that Rule 50 in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 did not give discretion to decide that judgments should not be published.
In addition, he held that Rule 50, which concerned privacy and restrictions on disclosure, did not provide any basis to override the principle of open justice.
Ms Ameyaw appealed to the Employment Appeal Tribunal. Judge Jennifer Eady QC dismissed the appeal.
On the issue of the Employment Tribunal’s power to restrict publication of judgments and written reasons, the judge said that the starting point was the principle of open justice, which was a fundamental aspect of the rule of law, which could only be curtailed where other competing rights were engaged so as to mean, effectively, that in the particular case, justice otherwise be denied.
“It is a principle that does not simply require that judicial hearings should generally take place in public; it also requires that judgments will generally be publicly available,” she said.
This was not only a consequence of the right to a fair trial under Article 6 of the European Convention on Human Rights, it was also an aspect of the Article 10 right of freedom of expression, which encompasses the right to impart and receive information.
The principles were in play in the 2013 Regulations and the Employment Tribunal Rules.
Schedule 1 Rule 67 of the Tribunal Rules provided that, subject to Rules 50 and 94, judgments and written reasons should be entered in the register.
Rules 94 (9) made specific provision in respect of national security cases, while Rule 50 allowed for a restriction in cases concerning confidential information, sexual misconduct and disability, and more generally, acknowledging the fact that competing rights and interests might require transparency to be curtailed.
Ms Ameyaw had argued that publishing the decisions, and identifying her in them, breached her right to respect for privacy and family life under Article 8 of the Convention.
Judge Eady said Regional Employment Judge Hildebrand was correct when he held that the Employment Tribunal had no power to exclude the strike-out judgment from the register.
Ms Ameyaw could have no expectation of privacy in respect of what took place at the strike-out hearing, and what was said there about a previous hearing at which her conduct was criticised, Judge Eady went on.
But even if Ms Ameyaw’s Article 8 rights were engaged, the issue was whether they outweighed the broader interests arising from the principle of open justice and protection of Article 6, the right to an open trial, and Article 10, the right to freedom of expression.
Judge Hildebrand was entitled to have regard to the facts that Ms Ameyaw’s application was made more than a year after she had been told that the strike-out judgment was entered in the register, and that no previous application for anonymity had been made.
Judge Eady added that the fact that the “record of the proceedings, published without restriction, might be ‘painful, humiliating, or deterrent’ would not, of itself, mean that it should not be made
public”. Judge Hildebrand had concluded that Rule 50 disclosed no basis for overruling the principle of open justice in this case, she said, adding:
“Exercising the jurisdiction of the EAT as an appellate Tribunal, the question is whether the view formed by the ET demonstrated an error of law. Given the circumstances of this case, I am unable to see that it did.”
She also rejected Ms Ameyaw’s argument that Judge Hildebrand had failed to give sufficient reasons for rejecting her applications.
Hearing: December 20, 2018; Decision: January 4, 2019
The appellant in person; Claire Darwin, instructed by in-house solicitor, for the respondent.
This report originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.
In a sealed Order dated 1 March 2019, the Court of Appeal has held that “EJ Morton was aware that the Claimant disagreed with the account of the closed hearing. It was for precisely that reason that EJ Morton felt unable to make findings of fact”. (Levison LJ)
Where lies the truth? Where findings of fact been made or not?
It is a trite law that consistent with natural justice that a person should be entitled to defend themselves by being given the opportunity to make representations that may either rebut, contradict or affirm an allegation made or asserted against that person. This was not done and remains a live issue at all material times.
In the U.K. in 2019, allegations have been made against a person for which they have been denied a fundamental right to defend themselves. The issue of Article 6 being engaged has been overlooked. The fact that PwC lawyers directed a judge on what to record as alleged observations has also been swept under the carpet. The notes of the hearing prepared by PwC lawyers which is not being considered reveal what transpired at the hearing.
This report is an example of bad journalistic practice and a flagrant abuse of media power.
In February 2017 recommendations by an EU report stated on page 144 (see attached link) that ALL such judgements should be anonymised. There is absolutely NO justification for the devastating effect such exposure has on an individual. Other EU countries have a framework for such disclosures to ensure they do not contravene other rights like data protection ofrhuman rights. Most of them anonymise the parties. The U.K. has behaved shamefully and this approach needs to be changed immediately and all victims should be compensated fully. No prior warning was given to the public/claimants on any government site before the publication of this data. No consent was sort and no warning given. Claimants could not even change their minds and have had to live with their names and personal matters splattered all over social media with the effect that they cannot find jobs. Start businesses. Some have even lost their homes and are in serious debt. Why? Because they sort justice for a wrong or perceived wrong. Where is the justice in such victimisation? It is an absolute disgrace.
https://BL-eclipse.eu/uploads/deliverables/Deliverable%20WS0-D1.pdf
The report is called “Online Publication of Court Decisions in the EU (Report of Policy a Group of the project ‘building on the European case law identifier’.