K v Burgess Chief Constable of Cheshire

Permission to appeal should not be granted merely to reinforce a restricted reporting order that already provides appropriate protection. Whether the order should continue after the Employment Appeal Tribunal has considered the merits is for that tribunal to decide on the material then before it. Omission of a reference to Employment Tribunal Rules and Procedure Rule 15(6) does not, without express exclusion and reasons, prevent reliance on that rule. An order continuing over a hearing extends at least to the end of that hearing; any wider effect must be considered by the tribunal.

Two linked applications were made by K concerning restricted reporting orders in proceedings involving the Burgess Chief Constable of Cheshire and the Stevens Commissioner of the Metropolitan Police Service. The first challenged an order dated 6 September 2002 which imposed reporting restrictions until an Employment Appeal Tribunal preliminary hearing and extended them to outstanding proceedings. The second concerned the tribunal’s jurisdiction, the omission of Rule 15(6) from a judgment of Mr Justice Lindsay dated 23 May 2002, and later orders continuing the restrictions. The central issues were whether permission was justified while appropriate protection remained in force and whether the omission excluded reliance on Rule 15(6).

1. First application. The order made by His Honour Judge Serota on 6 September 2002 prohibited publication capable of identifying the applicant, continued until the Employment Appeal Tribunal’s preliminary hearing, and extended to outstanding proceedings. It provided the applicant with the appropriate protection. The sensitivity of the issues and the wish to reinforce or make the protection perpetual did not justify permission to appeal. Any decision to continue or discontinue the order after consideration of the merits was for the Employment Appeal Tribunal on the material then before it. If restrictions were later removed, the applicant could seek permission to appeal and a stay. The first application was refused.
2. Second application. The Employment Tribunal had held on 9 August 2002 that it lacked jurisdiction to make a restricted reporting order. Although Mr Justice Lindsay’s judgment referred to jurisdiction under Employment Tribunal Rules and Procedure Rule 16(1), its omission of Rule 15(6) did not expressly exclude argument under that provision, and gave no reasons for doing so. It therefore remained open to the applicant to rely on Rule 15(6) unless and until the Employment Appeal Tribunal reached a different conclusion.
3. The order made by Judge Wilkie on 10 August 2002 was extended by Mr Justice Lindsay on 10 October 2002 over the conclusion of the Employment Appeal Tribunal appeal. The word over was understood to extend the order at least until the end of the hearing. Whether it continued thereafter, including indefinitely, was for the Employment Appeal Tribunal to determine. The second application for permission to appeal was inappropriate on the information then available.
4. A transcript of the judgment was directed to be supplied to the applicant at public expense and sent to the Employment Appeal Tribunals considering the applications.

• Court of Appeal (Civil Division): On 6 November 2002, Lord Justice Judge refused the first application for permission to appeal and treated the second as inappropriate on the information available.
• Employment Appeal Tribunal: A judgment of Mr Justice Lindsay dated 23 May 2002 identified the jurisdiction issue. Judge Wilkie made a restricted reporting order on 10 August 2002, and Mr Justice Lindsay extended it on 10 October 2002 over the conclusion of the appeal. A separate order by His Honour Judge Serota dated 6 September 2002 concerned an impending Employment Appeal Tribunal hearing.
• Employment Tribunal: On 9 August 2002, the tribunal concluded that it had no jurisdiction to make a restricted reporting order.