Damilare Ajao v Commerzbank AG & Ors

Section 1(1) of the Sexual Offences (Amendment) Act 1992 protects an allegation made in the context of potential criminal proceedings, where a charge may follow. It does not, without more, protect an allegation in civil, family or employment tribunal proceedings that conduct amounted to a relevant sexual offence.

An employment tribunal may revoke privacy orders under its case-management powers where there has been a material change of circumstances. Findings that allegations underpinning anonymity were fabricated constituted such a change. The tribunal was entitled, after balancing open justice and Convention rights, to revoke the claimant's anonymity and reporting restrictions.

A tribunal also has a discretion whether to take account of ability to pay when awarding costs. It may decline to reduce an award where the paying party has provided inadequate and selective evidence of means.

The claimant's discrimination, harassment, holiday-pay and related claims against his former employer and individual respondents were dismissed by the London Central Employment Tribunal. The tribunal found his evidence untruthful, including allegations of sexual harassment and sexual assault by the sixth respondent.

Following a consequential hearing, the tribunal revoked anonymity and restricted-reporting orders previously made for the claimant, continued protections for the sixth respondent, and ordered the claimant to contribute £20,000 towards the respondents' costs. It had also dismissed his claim for holiday pay concerning three pre-booked days of annual leave.

The claimant appealed on the revocation of privacy orders, holiday pay, and costs. The central issues were the scope of statutory anonymity, whether the tribunal had rejected that he was sick during annual leave, and whether its treatment of means in making the costs order was lawful.

1. Appeal dismissed on all grounds. The claimant was not entitled to the lifelong statutory anonymity for which he contended. An allegation under section 1(1) of the Sexual Offences (Amendment) Act 1992 is an allegation made in circumstances raising, or intended to raise, a real possibility of a criminal charge. It is not merely an allegation made in civil, family or tribunal proceedings of conduct which, if proved, would amount to a covered sexual offence. No criminal allegation against the sixth respondent had been made in this case.

2. The tribunal had, in any event, lawfully revoked the claimant's privacy orders under rule 29 of the Employment Tribunals Rules of Procedure 2013. Its findings that the claimant's account, including his allegations against the sixth respondent, was fabricated were a fundamental material change of circumstances. It was entitled under rule 50 to give substantial weight to open justice and freedom of expression. The claimant had no sustainable Convention right to remain anonymous once the factual basis for the orders had been rejected.

3. The holiday-pay ground disclosed no error of law. The tribunal had found false the claimant's evidence that the three pre-booked annual-leave days had been converted to sick leave. Read fairly in its factual context, its decision also rejected that he was in fact sick on those days. The dismissal of the claim under regulation 14 of the Working Time Regulations 1998 therefore stood.

4. The tribunal was entitled to order a contribution of £20,000 towards costs. Rule 84 gave it a discretion whether to have regard to ability to pay. It gave adequate reasons for declining to reduce the award: the claimant had failed to comply with directions and had supplied late, minimal and selective financial evidence, leaving his capital position unclear. The asserted universal-credit capital threshold was not advanced below and was not a matter requiring judicial notice.

5. On the respondents' separate appeal-costs application, the claimant's conduct regarding the appeal bundle, the amended answer and an irrelevant new witness statement was unreasonable. Taking his likely limited means into account did not preclude an order. He was ordered to contribute £5,362 towards the respondents' appeal costs, excluding VAT.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 11.
• London Central Employment Tribunal: Claims dismissed by a reserved liability decision sent on 14 February 2022, with minor corrections on 27 May 2022.
• London Central Employment Tribunal: By reserved consequential decision dated 5 July 2022, the tribunal revoked the claimant's privacy orders and ordered him to contribute £20,000 towards costs.