British Broadcasting Corpn v Roden

Anonymity in employment tribunal proceedings is an exceptional derogation from the paramount principle of open justice and the right to freedom of expression. The tribunal must conduct an intense, fact-specific balancing exercise under Rule 50, giving full weight to open justice and Article 10. The risk that the public may misunderstand unproved allegations, without clear and cogent evidence of resulting harm, is not a valid basis for anonymity. A claimant who brings public proceedings accepts the ordinary consequences of publicity, although the Article 8 right is not forfeited. After judgment, particularly strong public-interest reasons may favour publication of the parties’ names. Where the only justification for anonymity is invalid, the appeal tribunal may set aside the order without remittal.

G brought public employment tribunal claims against the BBC after the non-renewal of his fixed-term contract. The claims included unfair dismissal and related claims. The tribunal dismissed the principal claims but found that G had misled the BBC and had committed a fundamental breach of contract.

Before the substantive hearing, the employment judge made an anonymity order under Rule 50 of the Employment Tribunal Rules of Procedure 2013 because evidence would refer to serious sexual-assault allegations that were not directly in issue and had not been proved. After promulgation of an anonymised judgment, the judge refused the BBC’s application to set aside the order. The central issue was whether permanent anonymity was necessary and proportionate after judgment.

1. The appeal was allowed. The anonymity order was set aside, and G was directed to be identified by name in both judgments.

2. The making of an anonymity order under Rule 50 is not ordinarily a broad case-management discretion. It requires the tribunal to reconcile Articles 6, 8 and 10 and the common-law principle of open justice. Even if treated as discretionary, an order may be overturned for an error of law.

3. The employment judge failed to conduct the required intense and fact-specific balancing exercise after promulgation. He focused on one factor, namely the risk that the public would misunderstand unproved sexual allegations, without assessing the public interest in full publication or the comparative importance of the competing rights.

4. That sole reason was legally invalid. The public may be trusted to distinguish allegations or suspicion from a proven finding of guilt. A public judgment could explain that the allegations were denied and unproved. The asserted devastating consequences were unsupported by clear and cogent evidence.

5. G’s Article 8 rights carried little weight. He had chosen to bring public proceedings and had been found to have made material false statements to the BBC and the tribunal. Anonymity would shield him from publication of true findings relevant to the adjudication.

6. There were strong countervailing public interests in publication, including informing relevant bodies and future employers, and allowing the BBC to communicate the outcome of proceedings in full. The public interest in publication applies even to private employment claims.

7. Once the invalid factor was removed, no rational basis for anonymity remained. Remittal was unnecessary because anonymity would be a disproportionate and unlawful interference with open justice and Article 10.

• Employment Appeal Tribunal — The appeal from the employment judge’s refusal to vary or revoke the anonymity order was allowed. The order was set aside and no anonymity was granted.