F v G

Anonymisation under rule 49 applies only where proceedings appear to involve an allegation of the commission of a sexual offence; however tribunals have broader inherent and EU-derived powers to anonymise or make extended restricted reporting orders to protect article 8 rights.

When such wider powers are invoked the tribunal must carry out the conventional article 8/article 10 balancing exercise and explain why anonymisation is proportionate and necessary in respect of the particular persons affected.

The appellant was a care enabler who brought sex discrimination and unfair dismissal claims against her college employer. The college had a Relationships and Sexuality Policy which, in limited circumstances, permitted voluntary assistance to disabled male students to masturbate. The employment tribunal made a permanent anonymity order purporting to rely on rule 49. The appellant appealed that anonymity order to the Employment Appeal Tribunal. The central issue was whether anonymisation under rule 49 was justified and/or whether wider tribunal powers could be used to order permanent anonymisation to protect article 8 rights of students and staff.

(1) The appeal is dismissed. The Judge erred in purporting to rely on rule 49 because that rule applies only where proceedings involve an allegation of the commission of a sexual offence; no such allegation was shown to exist on the material before the tribunal (see paras [32]-[35]).

(2) Notwithstanding that error, the tribunal had power by reference to its wider procedural powers and the principles in X v Commissioner of Police of the Metropolis and A v B to anonymise its record to protect article 8 rights where necessary. Such powers are available where anonymisation is required to secure Convention rights even if rules 49 and 50 do not strictly apply (see paras [19]-[24]).

(3) Where anonymisation is sought the correct approach is: (a) first, determine whether rule 49 applies (if so anonymisation is mandatory); (b) otherwise consider whether restrictions are required to protect article 8 rights, balancing article 8 against article 10 and open justice; (c) if article 8 protection is required use rule 49/50 where applicable or the tribunal's wider powers otherwise; and (d) consider duration and whether an extended RRO is needed to prevent publication by parties (see paras [24], [16], [23]).

(4) Applying that approach, the President found that publication without anonymisation would interfere with the article 8 rights of the small, vulnerable group of students and, on balance, also the care staff, and that those rights outweighed the public interest in naming the parties in this case. The anonymity order was therefore justified under the tribunal's wider powers and should stand, subject to appropriate consideration of any extended RRO to restrain publication by parties after remedy (see paras [39]-[51], [61]).

(5) The tribunal explained practical differences between rule 49 (mandatory anonymisation where a sexual offence is alleged), rule 50 (restricted reporting orders which lapse at the end of proceedings and create criminal sanctions for breach) and anonymisation under wider procedural powers (paras [12]-[18], [25]).

Order: appeal dismissed; anonymisation of the tribunal record to be maintained; parties and the College may apply for an extended restricted reporting order at remedy hearing if further protection is required (paras [59]-[61]).

• Employment Tribunal (Birmingham) – case management decisions and substantive hearing; restricted reporting order under rule 50 made; interim anonymity measures and substantive judgment anonymised (reasons dated 11 April 2011).
• Employment Appeal Tribunal – appeal from the employment tribunal decision on anonymisation; judgment handed down by Underhill J. dismissing the appeal and confirming anonymisation (21 September 2011).