A v Choice Support (formerly MCCH Ltd)

An employment tribunal must distinguish between the statutory protection for identification in sexual-offence cases under section 11(1)(a) and the time-limited restricted-reporting power for sexual misconduct under section 11(1)(b) of the Employment Tribunals Act 1996. Rule 50 of the Employment Tribunal Rules provides wider powers where necessary to protect Convention rights or the interests of justice.

Orders should state their legal basis, separate anonymity from reporting restrictions, and address the risk of jigsaw identification. Permanent anonymity may be justified after balancing open justice and article 10 rights against an affected non-party's article 8 rights. A permanent restriction on reporting case details is justified only if a less restrictive anonymity order would not suffice.

The claimant alleged that EA, a fellow employee, raped her at work. The Employment Tribunal found that sexual activity began consensually but became non-consensual. It had made orders anonymising the claimant, EA and certain family members, and had imposed reporting restrictions.

On appeal proceedings, the respondent applied to make the temporary EAT reporting restriction permanent. EA intervened, relying on the effect that disclosure of the allegation and tribunal findings would have on his private life and mental health. The claimant accepted continued anonymity but opposed a permanent reporting restriction, wishing to publish her experience without identifying those protected.

The EAT had to decide what permanent anonymity and reporting order, if any, was necessary.

1. Application granted in part. The EAT made a permanent anonymity order for the claimant, EA and EA's parents. It declined to make a separate permanent restricted reporting order extending to case details or the respondent's identity.

2. Section 11(1)(a) of the Employment Tribunals Act 1996 mandates protection against identification in tribunal documentation where a sexual offence is alleged. Section 11(1)(b) instead concerns discretionary restricted reporting in sexual-misconduct cases and is time-limited. Rule 50 of the Employment Tribunal Rules is wider: it can protect Convention rights or the interests of justice, provided the restriction is necessary and open justice and freedom of expression receive full weight.

3. The earlier tribunal orders were unclear as to their basis. Construed objectively, EJ Freer's combined anonymisation and reporting order was more probably intended as a permanent order under the broader Rule 50 power. The EAT nevertheless had to make its own decision, while giving due weight to unappealed tribunal orders.

4. EA's article 8 rights were engaged. A public finding of non-consensual intercourse and an allegation of rape were grave imputations against a non-party, likely to harm reputation and adversely affect his mental health. The risk of jigsaw identification justified permanent anonymity for EA and his parents. The claimant's statutory anonymity also remained protected.

5. Open justice and article 10 did not require publication of identifying information. However, a restricted reporting order is more intrusive because it prohibits publication of case details. It should be permanent only where a less restrictive order cannot protect the relevant rights. A sufficiently framed anonymity order achieved the necessary protection here while permitting publication of non-identifying matters in the public interest.

• Employment Appeal Tribunal: made a permanent anonymity order and refused a broader permanent reporting restriction: [2023] EAT 18.
• Employment Tribunal: made interlocutory and final anonymity and reporting orders. The judgment appealed was that of Employment Judge Burgher sitting with members; no citation was stated.