L v Q Ltd

The Court of Appeal refused permission to appeal against the Employment Appeal Tribunal's decision to allow an Employment Tribunal judgment to be entered on the Register despite earlier orders for a private hearing and non-publication. The court analysed the statutory scheme in the Employment Tribunals Act 1996 (notably ss 10, 10A, 11 and 12) and the Employment Tribunals Rules (in particular Rule 50), and emphasised the fundamental principle of open justice and the limited circumstances in which an employment tribunal may withhold publication of its reasons.

The court held that Rule 50 permits anonymisation and other measures to protect Convention rights, but it does not ordinarily empower an ET to suppress publication of a judgment on the Register except in very limited circumstances (national security being the obvious example). The court also refused further redactions that would anonymise the claimant's disabilities as "Condition A" and "Condition B", concluding that such deletions would undermine understanding of the judgment and were not justified by Article 8 considerations.

Background and procedure:

• Mr L brought claims of direct and indirect discrimination, discrimination arising from disability, harassment and victimisation in the London Central Employment Tribunal. Shortly before the hearing his solicitors applied for a number of adjustments and for the whole hearing and judgment to be private and the parties and witnesses to be anonymised. The ET granted those orders and directed that its judgment should not be placed on the Register.
• Q Ltd appealed to the Employment Appeal Tribunal. Slade J heard the appeal on 20 December 2018: she upheld the anonymisation orders but set aside the ET order that the judgment should not be entered on the Register, directing instead that some initials be changed and reasonable redactions made to preserve anonymity. The claimant applied for permission to appeal that part of Slade J's decision to the Court of Appeal.

Issues before the Court of Appeal:

1. Whether the ET judgment should be entered on the Register.
2. Whether further redaction should be ordered to anonymise the claimant's disabilities and remove descriptions of their effects and a particular embarrassing incident.

Court's reasoning and legal framework:

• The court reviewed the statutory framework: the Employment Tribunals Act 1996 (ss 10, 10A, 11 and 12), the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and the ET Rules (notably Rule 50, Rule 67 and Rule 94). It stressed the common law principle of open justice and the need to give full weight to Articles 6 and 10 ECHR while recognising qualified circumstances where Article 8 rights may justify restrictions.
• The court accepted that Rule 50 authorises a range of privacy orders, including anonymisation and restricted reporting orders in the terms of ss 11 and 12, but concluded there is no general power under Rule 50 to keep a judgment entirely off the Register except in very rare cases (national security being the main example).
• The burden lies on the applicant to establish by clear and cogent evidence that publication would cause harm to privacy rights sufficient to derogate from open justice. Practical considerations were also important: those alleged to have discriminated against the claimant must be able to see the judgment, and they could discuss its contents with colleagues.

Disposition:

• The Court refused permission to appeal the EAT order allowing entry of the ET judgment on the Register.
• The Court refused further redactions to anonymise the disabilities and to remove the specified incident, concluding they were not reasonably necessary to preserve anonymity or protect Article 8 rights.
• Counsel were ordered to submit an agreed list of redactions limited to those necessary to preserve anonymity; the Employment Judge was asked to make those redactions and enter the judgment on the Register. The appellant was ordered to pay the costs of the application.

Permission to appeal was refused. The Court of Appeal reasoned that Rule 50 and related provisions permit anonymisation and other measures to protect Convention rights but do not ordinarily empower an Employment Tribunal to withhold entry of its judgment on the Register except in very exceptional circumstances (national security being the principal example). Further redactions to anonymise the claimant's disabilities would undermine understanding of the judgment and were not justified.

Employment Tribunal (London Central) hearing before Employment Judge Lewis and two lay members: hearing in private with orders for anonymisation and that the judgment would not be entered on the Register. Q Ltd appealed to the Employment Appeal Tribunal (Slade J) on 20 December 2018 (UKEAT/0209/18/BA): Slade J upheld anonymisation but set aside the ET order prohibiting entry on the Register and directed limited redactions. The claimant sought permission to appeal to the Court of Appeal which refused permission in this judgment ([2019] EWCA Civ 1417).