M v Northern, Eastern and Western Devon Clinical Commissioning Group (New Devon CCG) (Debarred)

Where an application for anonymisation under Rule 50 raises an arguable interference with Article 8 rights, an Employment Tribunal must conduct the required balance between open justice and the applicant’s Convention rights. The Rule 50 discretion is broad and is not confined to sexual-misconduct or disability cases, although restrictions on publicity will be rare.

An Employment Appeal Tribunal decides only whether the tribunal erred in law. Where the necessary evaluative exercise was not undertaken, it cannot ordinarily substitute its own assessment; the application should be remitted for a fresh determination.

The claimant had brought and withdrawn Employment Tribunal proceedings in 2017. A judgment recording the withdrawal, with the parties’ names, was placed on the public register. In 2022 he learned of its online availability and sought anonymisation under Rule 50, relying on the effect upon his private and professional life.

An Employment Judge refused the application on the papers, holding that Article 8 had not been invoked and that the online judgment did not interfere with that right. The claimant appealed. The central issue was whether the tribunal had erred by failing to recognise the Article 8 issue and therefore failing to undertake the necessary balancing exercise.

1. Appeal allowed. The Employment Judge proceeded on the false premise that Article 8 had not been invoked. The claimant’s reliance on human rights in respect of an isolated event in his professional and personal life raised Article 8.

2. Rule 50 requires a balancing exercise between the principle of open justice and competing Convention rights. The discretion is broad, though restrictions on the publicity of judgments will rarely be justified indefinitely. The tribunal did not undertake that exercise because it wrongly treated Article 8 as unengaged.

3. The EAT’s function was limited to identifying legal error. It was for the Employment Tribunal, rather than the EAT, to establish and evaluate the relevant facts and to assess the competing considerations. A balancing exercise can lawfully produce more than one outcome, so substitution was inappropriate.

4. The matter was remitted to a differently constituted Employment Tribunal to consider all the evidence afresh and apply the relevant principles. The expanded allegations concerning GDPR and other violations fell outside the permitted appeal grounds and were not addressed.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the Rule 50 application for fresh determination.
• Employment Tribunal: Refused the claimant’s application to anonymise details in the 2017 withdrawal judgment under Rule 50.