Fallows v News Group Newspapers Ltd (CA, RA, RB and RC v News Group Newspapers Ltd (Practice and Procedure: Restricted Reporting Order))

An Employment Tribunal retains jurisdiction under Rule 50(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 to consider an application to revoke or vary an extant restricted reporting order after the underlying claim has been withdrawn. Rule 50(1) confers a wider power than section 11 of the Employment Tribunals Act 1996 and may support restrictions extending beyond promulgation of the Tribunal’s decision.

Any restriction must be strictly necessary and must reflect the ultimate balancing exercise between privacy, open justice and freedom of expression. Settlement creates no presumption in favour of permanent non-reporting. An appellate tribunal should interfere with that assessment only for an error of principle or a plainly wrong conclusion.

Mr Fallows brought Employment Tribunal claims alleging unfair dismissal and unlawful sex discrimination, including allegations of sexual misconduct, against Sir Elton John and associated companies. Privacy orders were initially refused. An RRO was later made to hold the ring pending an appeal against that refusal.

The claims were confidentially settled and withdrawn, and the related appeal was dismissed. News Group Newspapers Ltd applied for the RRO to be revoked. Employment Judge Auerbach rejected the arguments that the Tribunal was functus officio and that the RRO had automatically lapsed, but revoked the Privacy Orders following a fresh balancing exercise. The appeal and cross-appeal concerned jurisdiction after withdrawal, the duration of the RRO, and the legality of that balancing exercise.

1. Jurisdiction after withdrawal. The Employment Tribunal retained jurisdiction to consider an application by a person with a legitimate interest to revoke or vary an extant privacy order. Rule 50(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 creates a freestanding procedure, available without temporal limitation, and is collateral to the withdrawn claim. Davidson v Dallas Macmillan [2010] IRLR 439 was distinguishable because the former Rule 50(7) was materially narrower. If necessary, the reasoning in Davidson should not be followed in light of the need for an effective remedy under Article 13 in respect of Article 10 rights, as recognised in Mackay and BBC Scotland v UK [2011] 53 EHRR.
2. Duration and statutory power. Rule 50(1) confers a power wider than the specific power under section 11 of the Employment Tribunals Act 1996 and Rule 50(3)(d). It permits orders restricting disclosure where necessary in the interests of justice or to protect Convention rights, including orders extending beyond the end of proceedings. Section 11(1)(b), referring to promulgation of the Tribunal’s decision, does not require an order to lapse merely because a claim is withdrawn. The power to make the wider order is authorised by section 7(1) of the 1996 Act. Such orders should, as a matter of practice, comply with the safeguards in Rule 50(5).
3. Balancing exercise. The Employment Judge correctly applied the ultimate balancing test between Articles 8 and 10. Neither right has automatic precedence. The court must focus intensely on the comparative importance of the specific rights, the justification for interfering with each, and proportionality. The principle of open justice applies even where hearings were private and proceedings settled before trial. Clear and cogent evidence is required to justify derogation. Unproven allegations remain untested allegations, and the public may be trusted to understand that fact.
4. Appellate restraint and outcome. The balancing exercise is analogous to an exercise of discretion. The EAT should interfere only where there is an error of principle, a plainly wrong conclusion, or a conclusion outside the reasonable ambit. The Judge was entitled to consider the circumstances in which the RRO was made, the public interest in reporting the proceedings and the status of the respondent, the absence of evidence of improperly obtained information, and the legitimate expectation of some confidentiality following settlement. That expectation did not outweigh open justice and freedom of expression. The appeal and cross-appeal were dismissed.

• Employment Tribunal: Employment Judge Auerbach initially refused privacy orders, later made an RRO to hold the ring pending appeal, and on 9 March 2016 revoked the Privacy Orders after the claims were settled and withdrawn.
• Employment Appeal Tribunal: The appeal against revocation and NGN’s cross-appeal were both dismissed.