F v J

An employment tribunal must not assume that presenting a claim puts either its existence or contents into the public domain. In an application for anonymity under rule 50, the tribunal must determine whether disclosure would interfere with the applicant’s Article 8 rights and, if so, whether the interference is justified by open justice.

Where the applicant relies on predicted harm to future employment, the burden remains on that applicant to provide clear and cogent evidence. However, fairness may require proactive steps to explain that evidential burden and to give a litigant in person a fair opportunity to provide evidence before rejecting the application for lack of such evidence.

The claimant, a university lecturer with an undisputed autism spectrum disorder, brought disability-discrimination claims against his former university. At a private preliminary hearing, the Employment Tribunal refused his application for anonymity under rule 50 of the Employment Tribunals Rules of Procedure 2013.

The tribunal considered that the claim was already in the public domain because it had been presented, and concluded that the claimant had not supplied clear and cogent evidence of harm to his future employability. The claimant appealed. The respondent conceded material grounds, but the EAT considered the appeal at a full hearing.

The central issue was whether the tribunal had lawfully balanced open justice against the claimant’s Article 8 privacy rights and fairly dealt with the evidence said to support anonymity.

1. Appeal allowed. The tribunal’s refusal of anonymity was quashed. The issue was remitted for a fresh determination by an Employment Judge other than Employment Judge Brewer.

2. The correct Article 8 inquiry was whether public disclosure of information in the proceedings would interfere with the claimant’s rights and, if so, whether that interference would be justified under Article 8(2). The tribunal had recognised that the claimant’s disability engaged Article 8 and that privacy had to be balanced against open justice.

3. The tribunal nevertheless made a material error of principle. By presenting a claim, a claimant does not automatically place the claim or its contents in the public domain. Regulation 14(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 concerns judgments and written reasons entered in the register. A response to a claim does not alter that position. The tribunal’s contrary assumption materially affected its assessment of the claimant’s Article 8 interests.

4. The principle in Ameyaw, that derogation from open justice requires clear and cogent evidence of harm, was correctly identified. But the claimant had to be afforded a fair opportunity to supply that evidence. Given his status as a litigant in person, his undisputed disability and the way he put his case, fairness required the tribunal at least to draw the evidential burden to his attention and permit sworn oral and/or relevant documentary evidence before deciding the application. It was also unfair to infer, without evidence, that his wish not to disclose disability to a future employer meant that he intended to be less than candid.

5. The EAT could not itself grant anonymity. Fact-finding and evaluation of the parties’ evidence were matters for the tribunal. There was no basis to transfer the matter from the region: applying Magill v Porter, an informed and fair-minded observer would not consider a tribunal in Nottingham biased because the Regional Employment Judge had rejected a misconduct complaint. However, applying the remittal guidance in Sinclair Roche & Temperley, the fresh anonymity decision should be made by another judge because the original judge had expressed a concluded view on the issue.

• Employment Appeal Tribunal: Allowed the appeal in [2023] EAT 92, quashed the refusal of anonymity and remitted the application for fresh determination by a different Employment Judge.
• Employment Tribunal: At a private preliminary hearing on 23 February 2022, refused the claimant’s application for an anonymity order under rule 50 of the Employment Tribunals Rules of Procedure 2013.