A v B, the Organisation & Ors

A permanent restricted reporting and anonymisation order is a case-management order. It may generally be varied or set aside only where there has been a material change of circumstances, or where an affected person lacked a reasonable opportunity to make representations.

An application to vary such an order is not an opportunity to repeat the original balancing exercise between open justice, freedom of expression and privacy rights. On an appeal from its refusal, the Employment Appeal Tribunal considers legal error rather than conducting that balance afresh. Settlement may reduce the open-justice interest in reporting a trial that will not occur, but does not itself remove continuing risks to protected persons.

The claimant brought employment claims alleging detriments for protected disclosures concerning animal testing. The Employment Tribunal made a permanent restricted reporting and anonymisation order in the first claim. Earlier challenges to that order had been found unarguable in the Employment Appeal Tribunal, and permission to appeal had been refused by the Court of Appeal.

After all four claims were settled and dismissed on withdrawal, the claimant applied to vary or set aside the original order. Employment Judge Hutchinson found no cogent evidence of a material reduction in the relevant risks and refused the application and a later reconsideration request.

The claimant appealed, principally contending that the Tribunal had failed to reassess open justice, freedom of expression and Convention rights. A further issue concerned whether a separate order was required for the unserved fourth claim.

1. The appeals were rejected. The Employment Tribunal made no error of law in refusing to vary or set aside the permanent restricted reporting and anonymisation order, or in refusing the subsequent application described as reconsideration.
2. An order under Employment Tribunals Rules of Procedure 2013, rule 50 derogates from open justice. The original order therefore required a balance between that principle, Convention rights and the evidence of risk. That balance had already been undertaken when the permanent order was made. The claimant could not use a later application to require the Tribunal to perform it afresh.
3. As the order was a case-management order, rule 29 applied. Following Serco Ltd v Wells, [2016] ICR 768, variation or revocation generally required a material change of circumstances. The claimant relied on an asserted reduction in risk, but the Tribunal was entitled to reject that assertion on the evidence. There was no cogent evidence of a material reduction.
4. The settlement of the substantive claims was not a material change favouring revocation. It meant that there would be no trial whose reporting would engage the open-justice principle and article 6 in the same way. It did not eliminate the article 8 risks which anonymisation had been intended to minimise. Settlement therefore reduced, but did not remove, the countervailing open-justice considerations.
5. The EAT’s function was to identify an error of law, not to substitute a fresh assessment for the Tribunal’s fact-sensitive evaluation. The claimant’s remaining arguments impermissibly sought to reopen the original order.
6. On the respondents’ concession, the question whether a separate restricted reporting order should be made for the fourth claim was remitted to Employment Judge Hutchinson, if available. The EAT order would continue to protect the position meanwhile and thereafter for at least as long as any Tribunal orders remained in force.

• Employment Appeal Tribunal: appeal dismissed in [2025] EAT 167, save that the fourth-claim restricted reporting order issue was remitted following the respondents’ concession.
• Employment Tribunal: Employment Judge Hutchinson refused to vary or set aside the original permanent restricted reporting and anonymisation order on 29 February 2024, and refused the later reconsideration application on 5 April 2024.
• Earlier appeal route: the claimant’s earlier challenge to the original order was rejected at the EAT permission stage and on a Rule 3(10) challenge. Permission to appeal to the Court of Appeal was refused.