Christie v Weiss & Ors

An anonymisation order under Employment Tribunals Rules of Procedure 2013, rule 50, derogates from open justice. The tribunal must therefore identify, on the evidence and facts of the particular case, whether the third party’s Article 8 rights are engaged and the nature and weight of any threatened infringement. It must then balance that countervailing interest against open justice and the legitimate public interest in the allegations.

Neither the non-party status of the person concerned, nor the limited place of the allegation in the claim, nor the absence of public-figure status, can substitute for that fact-specific assessment. Where the material establishes that no sufficiently weighty Article 8 interest exists, anonymisation must be refused.

The claimant, a former employee and lawyer, brought claims including sex discrimination and harassment against her former law firm and a partner. Her witness statement alleged inappropriate conduct by an individual associated with a corporate client, and an inadequate response by the respondents.

At a preliminary hearing on 19 December 2019, the Employment Tribunal ordered the names of the client and individual to be redacted from specified trial material and required them to be identified by ciphers at the hearing. The claimant appealed. The respondents did not oppose the appeal but sought remittal so that they could renew their application.

The central issue was whether the tribunal had lawfully balanced open justice against the Article 8 rights asserted for the non-party individual and company, and whether the EAT should remit or substitute its own decision.

1. Appeal allowed. The tribunal’s anonymisation orders were quashed and the application was not remitted.

2. The tribunal correctly started with open justice and rule 50(2) of the Employment Tribunals Rules of Procedure 2013. It was also right to consider whether the Article 8 rights of non-parties might be engaged. However, it made no critical, fact-specific assessment of whether either the individual’s or the company’s Article 8 rights were engaged, or of the nature and weight of any infringement if anonymity were refused. That was an error of principle in the required balancing exercise.

3. The facts that the third parties were neither parties nor witnesses, that the allegations occupied a small part of the claim, and that they were not public figures did not answer the open-justice question. The tribunal had not considered the public interest in allegations that the respondents preferred client relations to an employee’s interests in a matter related to sex.

4. Applying the appellate approach stated in Fallows v News Group Newspapers Limited [2016] ICR 801, the error justified interference. Applying Jafri v Lincoln College [2014] ICR 920, substitution was appropriate because the EAT had all material relevant to the rule 50 application and only one lawful result was possible.

5. No evidence or fact-specific argument showed that Article 8 was engaged for the company or, if engaged for the individual, that it had sufficient weight to outweigh open justice. Embarrassment alone did not suffice. The allegations had legitimate public interest and remained part of the claimant’s pleaded factual context. The only proper outcome was refusal of anonymity.

• Employment Appeal Tribunal: allowed the claimant’s appeal and quashed the anonymisation orders: [2020] UKEAT 0036_20_2705.
• Employment Tribunal: at a preliminary hearing on 19 December 2019, ordered redaction of the names of a corporate client and an individual, and required their anonymised identification during the trial.