AEL v Flight Centre (UK) Ltd

The Employment Appeal Tribunal allowed the appellant's appeal against the Employment Tribunal's handling of two applications for anonymity made under Rule 50 of the Employment Tribunals (Rules of Procedure) 2013. The EAT held that the ET erred by treating the appellant's application dated 17 September 2021 as a request to reconsider the earlier 14 July 2021 refusal and by attempting to deal with it under the Rule 70 reconsideration procedure, when a Rule 50 order is a case management order and not a "judgment" for the purposes of Rule 70. The EAT concluded that the ET never properly considered the later Rule 50 application of 4 August 2021 on its merits in the changed circumstances (production of a disability impact statement, disclosure of medical records and settlement of the claims) and therefore allowed the appeal.

The EAT further conducted the balancing exercise itself, applying the relevant legal framework (Rule 50, the principle of open justice and Article 8) and, exercising its powers under the Employment Tribunals Act 1996 and its inherent powers, made an anonymity order substituting the appellant's name with the initials "AEL" and directed revision of public ET judgments to reflect anonymisation.

Background and parties: The claimant (now the appellant) brought two sets of proceedings in the Employment Tribunal: Claim 1 (presented 12 May 2020) raising whistleblowing detriment and unfair dismissal allegations under the Employment Rights Act 1996 (ss.47B, 94 and 103A) and an interim relief application under s.120 ERA; and Claim 2 (presented 16 August 2020) raising discrimination, harassment and victimisation under the Equality Act 2010, together with repeated ERA allegations. The claimant was represented in person at the EAT hearing; the respondent did not oppose the appeal.

Procedural posture and applications: There were multiple ET judgments placed on the public register. The claimant made a first anonymity application under Rule 50 on 14 July 2021 which was refused by EJ Wright on 26 July 2021. A second Rule 50 application was made on 4 August 2021 supported by a disability impact statement and medical records. The parties settled their disputes on 14 August 2021 and the claims were withdrawn. The ET (via EJ Abbott) wrote on 9 September 2021 referring the claimant back to the earlier 26 July 2021 refusal rather than considering the 4 August 2021 application afresh. The claimant applied for reconsideration on 17 September 2021. EJ Wright issued a decision on 21 March 2022 treating the application as a reconsideration of the 26 July 2021 decision and refused it. The claimant appealed to the EAT.

Issues framed: (i) Whether the ET erred in treating the claimant's application as a Rule 70 reconsideration of the 26 July 2021 judgment rather than addressing the separate 4 August 2021 Rule 50 application on its merits; (ii) Whether the ET was correct to apply the Rule 70 reconsideration procedure to a Rule 50 application; and (iii) Whether an anonymity order should be made in the changed circumstances (medical evidence produced and claims settled), requiring a balancing exercise under the open justice principle and Article 8.

Court's reasoning and decision: The EAT held that an order under Rule 50 is a case management order (not a "judgment" under Rule 1(3) / Rule 70), so the ET should not have attempted to reconsider it under Rule 70. The ET erred in three respects: treating the 17 September 2021 application as a challenge to the 26 July 2021 decision; applying Rule 70 (which does not extend to case management orders); and failing to consider the substance of the 4 August 2021 Rule 50 application in light of changed circumstances. The EAT allowed the appeal on the amended ground and, because the respondent did not oppose the appeal and there was only one party wanting a substantive determination, the EAT exercised its own powers (s.35(1) ETA and/or s.30(3) and inherent powers) to make an anonymity order. The EAT balanced the limited interference with open justice (no full merits hearing, no press interest, existing public register entries were not full merits findings) against the claimant's Article 8 interests and the distress and reputational and employment harms asserted, and ordered anonymisation (initials "AEL") and revision of the public register judgments.

Wider context: The judgment reiterates that applications under Rule 50 can be made at any time, that the burden of proof for derogation from open justice is on the applicant with clear and cogent evidence, and that case management orders cannot be reconsidered under Rule 70. The EAT observed that where only one party wishes the EAT to determine an issue and the other party does not oppose, the EAT may itself make the substantive order rather than remit to the ET.

Appeal allowed. The EAT held that the Employment Tribunal erred by treating the appellant's applications as a Rule 70 reconsideration of an earlier refusal and by failing to consider the later Rule 50 application of 4 August 2021 on its merits in changed circumstances. The EAT concluded that a Rule 50 order is a case management order and not a "judgment" for Rule 70 purposes, and that the ET should have considered the second application afresh (under Rule 29 principles) including an Article 8/open justice balancing exercise. Exercising its powers under the Employment Tribunals Act 1996 and its inherent powers, the EAT made an anonymity order substituting the appellant's name with the initials "AEL" and directed revision of public ET judgments to reflect that anonymisation.

The appeal challenged an Employment Tribunal decision communicated on 21 March 2022 refusing the claimant's reconsideration request. The EAT initially considered the appeal under Rule 3(7) (Eady J dismissed as not reasonably arguable), the claimant exercised the right to a Rule 3(10) oral hearing which proceeded and the appeal was listed for full hearing. During the appeal process HHJ Shanks made an interim anonymity order (21 July 2023). The final determination was delivered by the EAT on 22 July 2024 ([2024] EAT 116).