Vatish v Crown Prosecution Service

A restricted reporting order under rule 50 of the Employment Tribunals Rules of Procedure is discretionary and should be made only where necessary to protect the interests of justice or an affected person’s Article 8 rights. The availability of mandatory anonymisation under rule 49 does not itself justify a rule 50 order. The tribunal must apply each provision according to its own terms and identify a sufficient, continuing need for protection. Protection may extend to an alleged perpetrator or witness, including to prevent undue pressure during evidence, but that justification is unavailable once the relevant evidence has been given. Existing publicity and the absence of any application for protection are material considerations.

The claimant, a CPS lawyer, brought employment claims alleging discriminatory and offensive treatment by her manager, including alleged sexual assaults. The allegations received substantial press coverage. During the part-heard hearing, evidence was also given concerning alleged inappropriate touching of another employee, who denied the allegation.

The Employment Tribunal made orders under rules 49 and 50, restricting identification of the claimant, the manager and the witness. The claimant appealed against the rule 50 order. The appeal was rejected on the sift, but proceeded before the Employment Appeal Tribunal after the respondents ceased to oppose it. The central issue was whether the circumstances disclosed a proper basis for exercising the discretion under rule 50.

1. The appeal was allowed and the restricted reporting order was revoked. The order had been wrong in law because no sufficient protective purpose had been established.

2. Rule 49 and rule 50 serve different functions. Rule 49 imposes mandatory removal of identifying matter from the public record in proceedings involving allegations of a sexual offence. Rule 50 confers a discretion in proceedings involving allegations of sexual misconduct and restricts reporting only while the proceedings remain ongoing. The fact that rule 49 applied did not make a rule 50 order automatic; each rule had to be applied according to its own terms.

3. A rule 50 order should not be made unless necessary to protect the interests of justice or, potentially, an affected person’s Article 8 rights. The power may protect an alleged victim, alleged perpetrator or, in appropriate circumstances, a witness. Protection of a witness or alleged perpetrator may be justified by the risk of undue pressure caused by contemporaneous reporting.

4. No such need existed here. The claimant did not seek anonymity and had already given evidence. The manager had made no application based on undue pressure, there was no evidence of exceptional vulnerability, and the allegations against him had already been widely reported. The witness had already given evidence, did not seek protection, and the evidence concerning her was unlikely to engage Article 8 rights.

5. The extensive prior reporting also meant that no proper purpose would be served by restricting further reporting. The Tribunal therefore had no proper basis for exercising the rule 50 discretion.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s rule 50 order and revoked that order.
• Employment Tribunal, London Central: made restricted reporting orders under rules 49 and 50 during a part-heard discrimination hearing.
• Sift stage: Judge McMullen QC rejected the appeal on the sift before it proceeded under rule 3(10).