AEL v Flight Centre (UK) Ltd

An anonymity application under Rule 50 is a case management application, not a judgment capable of reconsideration under Rule 70. A tribunal must instead consider whether an earlier case management order should be varied or set aside under Rule 29.

Where a renewed anonymity application relies on materially changed circumstances and new evidence, it must be considered on its merits. The tribunal must balance open justice against Article 8 privacy rights, including the harm caused by disclosure, the importance of the information, and the extent to which restriction would impair the purposes of open justice.

The Claimant brought employment, whistleblowing and Equality Act claims against her former employer. Several earlier Employment Tribunal decisions had been placed on the public register. After her claims were settled and withdrawn, she sought anonymity under Rule 50, relying on a disability impact statement and medical evidence.

The Employment Tribunal treated her later application as already determined by an earlier refusal. It then purported to determine her reconsideration request as concerning that earlier decision. The Claimant appealed against the decision sent on 21 March 2022.

The issue was whether the Tribunal had failed to determine the renewed anonymity application in its changed circumstances and, if so, whether the EAT should remit the matter or determine it.

1. Appeal allowed. The Employment Tribunal had erred by treating the Claimant’s request as a reconsideration of the earlier refusal of anonymity, rather than addressing her later application of 4 August 2021 and the decision of 9 September 2021.

2. An order under Rule 50 of the Employment Tribunals (Rules of Procedure) 2013 is a case management order. It is therefore outside the Rule 70 reconsideration procedure, which is confined to judgments. The proper route was to consider whether the earlier case management order should be varied or set aside under Rule 29.

3. The later application required fresh consideration. It was supported by a disability impact statement and medical records, and the claims had been compromised. The disability issue which had influenced the first refusal would therefore never be determined. Those were material changes of circumstance.

4. The Tribunal should have undertaken the Rule 50 balancing exercise. It had to consider whether public disclosure interfered with Article 8 rights and, if so, whether the interference was justified under Article 8(2), giving full weight to open justice. Relevant matters included the harm and distress caused by disclosure, the limited public value of records from proceedings that settled without a merits hearing, the absence of press interest, and the Respondent’s lack of objection.

5. Although remittal is ordinarily appropriate after a successful appeal, the EAT determined the application because the Respondent did not oppose the appeal or participate. Exercising its powers under section 35(1) of the Employment Tribunals Act 1996, the EAT ordered anonymity. The Claimant was to be identified as “AEL”, including in the existing public-register judgments.

• Employment Appeal Tribunal: Appeal allowed in [2024] EAT 116. The EAT set aside the erroneous treatment of the renewed anonymity application and itself granted anonymity.
• Employment Tribunal: The decision sent on 21 March 2022 declined the Claimant’s reconsideration application, treating it as directed to the refusal of 26 July 2021 rather than the later application and decision of 9 September 2021.