A v Secretary of State for Justice

When considering an anonymisation order under Rule 50 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, a tribunal must identify why restriction is necessary and then give full weight to open justice and freedom of expression.

The reference to protecting the Convention rights of any person includes a child who is not a party or witness. The tribunal must consider the child’s own private and family life, particularly where identification of the parents would probably identify the child. Open justice may be preserved by reporting the facts while anonymising those whose identification would disproportionately interfere with the child’s rights.

The Employment Tribunal dismissed the claimant’s unfair dismissal claim. At an earlier stage, an Employment Judge had made an anonymisation order under Rule 50. At the final hearing, the tribunal revoked that order and made a restricted reporting order instead.

The claimant appealed only against revocation of the anonymisation order. The central issue was whether the tribunal had properly considered the Convention rights of the claimant’s child, and balanced those rights against open justice and freedom of expression.

1. Appeal allowed. The Employment Tribunal had erred in law by revoking the anonymisation order without properly analysing the Convention rights of the claimant’s child.
2. Rule 50 requires two related assessments. First, the tribunal must identify the basis on which restriction is necessary, namely the interests of justice, protection of the Convention rights of any person, or the circumstances referred to in section 10A of the Employment Tribunals Act 1996. Secondly, it must give full weight to open justice and freedom of expression.
3. The expression “any person” is not confined to parties and witnesses. It includes a child whose identity may be revealed indirectly through identification of the parents. The child’s own right to private and family life required proper consideration, even if the mother’s explanation of her concerns was imperfect and even if the child was not involved in the employment proceedings.
4. Open justice and freedom of expression did not outweigh the child’s rights. There was no public interest in identifying the child. The issues concerning possible abuse of power by a supervising probation officer could be reported and considered while the individuals were identified only by initials.
5. An anonymisation order preventing disclosure of the claimant’s and J’s identities was necessary and proportionate. It preserved open justice because it restricted identification rather than reporting of the facts.

• Employment Tribunal: The claimant’s unfair dismissal claim was dismissed. The tribunal revoked an earlier anonymisation order and made a restricted reporting order. The decision was sent to the parties on 17 August 2017.
• Employment Appeal Tribunal: Permission to appeal the unfair dismissal decision was not permitted to proceed. The appeal concerning revocation of the anonymisation order was allowed, and an anonymisation order was made.