A v B & Ors

Employment Tribunals Act 1996 section 11 and Rule 50 create a statutory exception to open justice. Before the liability decision is promulgated, a tribunal may restrict reporting where necessary to protect Convention rights, including Article 8 interests in honour and reputation. The jurisdiction is not confined to protecting the administration of justice.

The tribunal must nevertheless give full weight to open justice and freedom of expression. Open justice includes fair, accurate and contemporaneous reporting with names. An order requires a case-specific balance on the evidence. It cannot rest on an assumption that an open hearing alone satisfies open justice, unsupported fear of misreporting, parity with statutory anonymity for complainants, or a party's public status. An RRO under section 11 ends when the liability decision is promulgated.

The claimants brought Employment Tribunal claims alleging sexual harassment and sexual offences by the second respondent, which he denied. They had statutory lifetime anonymity as alleged victims under the Sexual Offences (Amendment) Act 1992.

The Employment Tribunal granted the respondents a restricted reporting order until after any remedy decision, but refused anonymity orders for all parties. The claimants appealed the RRO and the refusal of anonymity. The respondents lodged a contingent cross-appeal concerning anonymity, and Times Newspapers Ltd joined the appeal.

The central issues were the proper Rule 50 balance between open justice, Article 10 and the second respondent's Article 8 rights, the permissible duration of an RRO, and whether further anonymity was required for the claimants.

1. The appeal was allowed in part. The RRO decision was set aside and remitted to a freshly constituted Employment Tribunal. The appeal against refusal of anonymity orders was dismissed. There was no order on the respondents' contingent cross-appeal.

2. Section 11 of the Employment Tribunals Act 1996 and Rule 50 are a statutory exception to the ordinary strict-necessity rule governing derogations from open justice. Under Rule 50(1), an RRO may be necessary to protect a person's Convention rights as well as in the interests of justice. It may therefore protect an alleged perpetrator's qualified Article 8 interests in honour and reputation pending adjudication. The jurisdiction is not confined to cases in which publicity would impair the administration of justice.

3. The exception does not make an RRO routine. Rule 50(2) requires a fact-specific balancing exercise which gives full weight to open justice and Article 10. Open justice is not exhausted by holding the hearing in public. It includes the public's ability to receive fair, accurate, named and contemporaneous reports of the proceedings.

4. The Employment Judge erred by effectively treating public access to the hearing as sufficient compliance with open justice. In the absence of supporting evidence, fear of misreporting was irrelevant. It was also wrong to treat parity with the statutory protection afforded to alleged victims under the Sexual Offences (Amendment) Act 1992 as a factor favouring protection for the alleged perpetrator. Parliament had made that distinction.

5. Distress and reputational harm caused by reports of unproven sexual allegations may nevertheless be relevant Article 8 considerations. A party's public or social status has no weight in either direction, and Rule 50 creates no general leniency for claimants or respondents.

6. The reference in section 11 to the promulgation of the tribunal's decision means the decision on liability. An RRO could not be continued automatically through a subsequent remedy stage. The anonymity refusal disclosed no error. A tribunal judgment was not within the section 6 exception relied on by the claimants, and concerns about possible social-media breaches did not require an anonymity order.

• Employment Appeal Tribunal: RRO appeal allowed and remitted to a freshly constituted tribunal; anonymity appeal dismissed.
• London (Central) Employment Tribunal: Employment Judge Wade granted an RRO until after any remedy decision and refused anonymity orders. The decision was sent to the parties on 15 February 2018.