DBP v Scottish Ambulance Service

Where an unrepresented applicant for post-hearing anonymity identifies a genuine ability and intention to obtain medical evidence relevant to a claimed risk of self-harm or suicide, fairness may require a reasonable, time-limited opportunity to obtain and serve that evidence. It is plainly wrong to reject the application summarily merely because the evidence has not yet been obtained.

Allegations of suicidal tendencies require utmost seriousness. They should not be too readily dismissed, particularly where the published judgment itself records prior suicidal thoughts or an overdose. The weight of open justice remains substantial, and anonymity still depends on clear and cogent evidence.

The claimant's employment claims had been dismissed after a ten-day Employment Tribunal hearing. The unredacted judgment was entered on the online Register and included her evidence of suicidal thoughts and a previous overdose.

Over a year later, the claimant renewed an earlier request for permanent anonymity. She said that continuing online publication created a risk of self-harm and suicide. She sought an oral hearing and stated that she could fund an expert psychological report, if necessary by selling the family car. Employment Judge Sutherland refused the application, described as one for reconsideration, on the papers because no medical evidence had been supplied.

The claimant appealed, contending that it was unfair to refuse her application without giving her an opportunity to obtain the identified medical evidence.

1. Appeal allowed. The Employment Judge's refusal was plainly wrong and was a decision no reasonable tribunal could make. The issue was not whether the evidence then available required anonymity, but whether the application could fairly be rejected because supporting medical evidence had not yet been obtained.

2. An assertion of suicidal tendencies must be treated with utmost seriousness and not too readily dismissed. The Tribunal's own earlier judgment recorded evidence of suicidal thoughts and an overdose. That history called for caution before treating the asserted continuing risk as implausible. It also required consideration of whether open justice was served by a person's name remaining permanently associated online with that information.

3. There will be cases in which medical material does not provide the clear and cogent evidence required to justify a derogation from open justice, or in which obtaining it would be futile. This was not such a case. The claimant was unrepresented, had sought guidance and an oral hearing, and had given a credible indication that she could obtain an expert report. Fairness required a reasonable, time-limited opportunity to obtain and serve it. If the evidence left matters in dispute, a short oral hearing was likely to be proportionate.

4. The Tribunal had incorrectly directed the claimant towards reconsideration, because an anonymity decision is a case-management order rather than a judgment. The error did not affect the appeal because the parties agreed that her application should be treated on its substance.

5. The application was remitted to a different Employment Tribunal judge, applying Sinclair Roche & Temperley v Heard [2004] IRLR 763 EAT. The new judge is to set a realistic evidence timetable and decide whether permanent anonymity should be granted. A temporary anonymity order using the cipher DBP was made pending that decision.

• Employment Appeal Tribunal: Allowed the claimant's appeal against the third refusal of permanent anonymity and remitted the application for fresh determination by a different Employment Tribunal judge.
• Employment Tribunal: Employment Judge Sutherland had refused the claimant's renewed anonymity application on the papers on 2 April 2024, after earlier refusals of anonymity.
• Employment Tribunal: The claimant's substantive complaints of unfair constructive dismissal, protected-disclosure detriment and disability-related harassment had been dismissed following a hearing in October and November 2022.