EF v AB

An Employment Tribunal may make an extended restricted reporting order where this is necessary to protect Convention rights. That power derives from the Convention, rather than from the time-limited statutory power to make such an order in cases involving sexual misconduct.

Where Articles 8 and 10 are engaged, the tribunal must separately assess each affected person's rights, including those of a non-party and a child. It must conduct an intense, proportionate comparison of the particular rights and justifications in the case. Prurient interest, and information of interest only to a small group, are not a public interest capable of outweighing strong privacy rights in lawful private sexual matters.

AB brought Employment Tribunal claims against EF and others which included allegations of sexual harassment and sexual abuse involving EF and EF's wife, NP. The Tribunal dismissed all claims and found that AB had pursued them as part of a campaign of revenge and blackmail.

A temporary restricted reporting order had protected the identities of AB, EF and NP. The Tribunal declined to make the order permanent for EF and NP, although it continued restrictions for four other individuals. EF and NP appealed. NP had not been a party or witness before the Tribunal.

The central issue was whether the Tribunal had lawfully balanced the Article 8 privacy rights of EF and NP against Article 10 and open-justice considerations when refusing an extended restricted reporting order.

1. Appeal allowed. The Employment Tribunal erred in law by refusing the applications of EF and NP for an extended restricted reporting order.

2. The statutory power under Employment Tribunals Act 1996, section 11(1)(b), is time-limited. However, the power to make an extended order necessary to protect Article 8 rights derives from the Convention, as explained in F v G, [2012] ICR 246. Rule 50 of the 2013 Rules did not itself enlarge the duration authorised by the enabling legislation.

3. The Tribunal had to give intense and separate consideration to the competing Article 8 and Article 10 rights of EF and NP. It wrongly treated NP's privacy as inseparable from EF's, failed to assess her position as a non-party, and omitted the effect on her child. NP retained privacy in her sexual relations and photographs even if she knew that material might be exchanged privately between EF and AB.

4. EF and NP had strong privacy rights in allegations concerning lawful private sexual activity, whether the allegations were true or false. Public prurience was not a sufficient justification for disclosure. The asserted interest of employees in learning why their employment under AB had been unpleasant was tenuous, had no relevance to NP, and did not contribute to a debate of general public interest. The Tribunal also failed to weigh its findings that AB had acted from revenge and blackmail, and the effect disclosure would have on the ongoing High Court privacy proceedings.

5. Open justice was the principal countervailing consideration. Its limitation was partial: the hearing was public and a full anonymised judgment had been issued. On the Tribunal's findings, a properly directed tribunal could only have made an extended order. The EAT therefore exercised its powers under section 35(1)(a) of the Employment Tribunals Act 1996 and made the extended restricted reporting order, which also prevented identification of AB.

• Employment Appeal Tribunal: Allowed EF and NP's appeal and substituted an extended restricted reporting order.
• Employment Tribunal: By a judgment sent on 14 August 2013, refused to extend indefinitely the restricted reporting order for EF and NP, while dismissing AB's substantive claims in a separate liability judgment.