A & Anor v X (PRACTICE AND PROCEDURE - Disclosure)

The Employment Appeal Tribunal may make a restricted reporting order continuing after promulgation where this is required to protect Convention rights. The power is derived from its general procedural power in section 30(3) of the Employment Tribunals Act 1996, read compatibly with Convention rights; it is not an inherent power.

Mandatory permanent anonymisation of the Tribunal's public judgment under Rule 23(2) does not itself require a reporting restriction. It is, however, a strong factor favouring one where unrestricted reporting would defeat the protection provided by anonymisation. The Article 8 and Article 10 balance must reflect the status of unproved allegations, the withdrawal of claims, the individual harm shown, and any real risk of identifying protected complainants.

The claimants brought employment claims alleging sexual harassment, including sexual offences, against the respondents. An Employment Tribunal granted a restricted reporting order. On an earlier appeal, the Employment Appeal Tribunal allowed the claimants' appeal, remitted the reporting-restriction issue to a freshly constituted Tribunal, and made interim restrictions.

The claims were then withdrawn and dismissed. The respondents did not seek to continue the Employment Tribunal order. Times Newspapers Ltd applied to set aside the continuing order in the Appeal Tribunal, contending that the Tribunal lacked post-promulgation jurisdiction and that open justice and Article 10 prevailed over the second respondent's Article 8 rights. The central questions were whether that jurisdiction existed and, if so, how the competing rights should be balanced.

1. The application to set aside the restricted reporting order was refused. The Appeal Tribunal had jurisdiction to make an order continuing after promulgation. Although restrictions on reporting of public proceedings require legislative authority and cannot rest on inherent jurisdiction, section 30(3) of the Employment Tribunals Act 1996 could be read compatibly with Convention rights to supply that authority. The Tribunal followed A v. B, [2010] ICR 849. Section 35 affected the Employment Tribunal's order only and did not adequately resolve the uncertain position concerning reporting of the Appeal Tribunal proceedings.

2. Rule 23(2) imposed permanent anonymisation of the Appeal Tribunal's judgment and public record because the appeal involved allegations of sexual offences. That rule did not itself create a reporting restriction, and Rule 23(3)'s ordinary power expired on promulgation. Nevertheless, the mandatory anonymisation was a powerful consideration when exercising the post-promulgation jurisdiction. It would ordinarily undermine that statutory objective if an unrestricted press report could identify persons protected in the anonymised judgment, particularly while allegations remained unproved and the claims had been withdrawn and dismissed.

3. The court balanced open justice and Article 10 against the second respondent's qualified Article 8 interest in honour and reputation. The latter merited substantial weight. He had not initiated the claims; they had been withdrawn and dismissed; and his unchallenged evidence established particular distress and a real concern that readers would not distinguish allegation from proof. The public and social status of the person accused was not a factor on either side of the balance.

4. The court distinguished Fallows v. News Group Newspapers Ltd, [2016] ICR 801, on the balancing issue. Unlike that case, the present Appeal Tribunal proceedings attracted mandatory permanent anonymisation under Rule 23(2). There was also a real risk that unrestricted reporting could enable jigsaw identification of the claimants and compromise their protection under section 1(1) of the Sexual Offences (Amendment) Act 1992.

5. The balance therefore firmly favoured continuation of a restricted reporting order, made under the post-promulgation jurisdiction rather than Rule 23(3).

• Employment Appeal Tribunal: The present further application was dismissed and the continuing restricted reporting order was maintained.
• Employment Appeal Tribunal: In the linked earlier appeal, the Tribunal allowed the claimants' appeal and remitted the restricted-reporting-order issue to a freshly constituted Employment Tribunal: [2018] UKEAT 0113_18_1607.
• Employment Tribunal: The London Central Employment Tribunal had granted a restricted reporting order by a decision sent to the parties on 15 February 2018. On 3 September 2018 it dismissed the claims upon withdrawal, and the respondents did not seek continuation of its reporting order.