F v J

Under rule 50, a party seeking anonymity need not prove objectively that feared future harm will occur. The question is whether there is a reasonable foundation for the concern and whether refusing protection would prejudice the administration of justice. That is a relatively low evidential threshold.

In balancing that interest against open justice, the tribunal must address the risk actually advanced. Evidence that a claimant obtained later employment does not answer a fear of stigma unless it is known whether the later employer knew of the disability. Where the parties’ identities add little to public understanding but disclosure would expose a claimant to reasonably held fears of harm, anonymity may be granted to both parties.

The claimant, an academic formerly employed by the respondent as a university lecturer, brought disability-discrimination claims. It was accepted that he had Asperger’s Syndrome, an autism spectrum disorder and a disability for the purposes of the Equality Act 2010. He had kept the diagnosis private and sought anonymity because public disclosure, he believed, would materially damage his future employment prospects.

This was the second appeal concerning anonymity. An earlier refusal had been remitted by the Employment Appeal Tribunal in [2023] EAT 92. On remittal, the Employment Tribunal again refused the application under rule 50. The claimant appealed, contending that the Tribunal had required objective proof that his fears were well founded and had wrongly treated his subsequent employment as decisive.

1. Appeal allowed. The Employment Tribunal had applied too demanding a test to the claimant’s application under rule 50 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

2. Millicom Services UK Ltd v Clifford established that the relevant question is not whether the asserted future risk can be objectively proved or verified. The Tribunal had to consider whether the claimant’s subjective concerns, even if ultimately not well founded, were such that refusal of anonymity would prejudice the administration of justice. The claimant needed a reasonable foundation for his concern, which was a relatively low evidential threshold.

3. The Tribunal had wrongly required medical or psychological evidence and proof of harm to the claimant’s particular future career. Such evidence could not answer whether disclosure of autism carried stigma in the employment market. The material before the Tribunal raised serious concerns about disadvantage suffered by people who disclose autism when seeking work.

4. The Tribunal had also attached significance to the claimant obtaining later work in education without determining whether that employer knew of his disability. If it did not, that employment was irrelevant to the feared consequences of public disclosure.

5. The EAT unanimously concluded that the claimant’s concerns were genuine, had an objective foundation and were reasonable. The limited interference with open justice was outweighed by those concerns because the parties’ identities were not critical to public understanding of the case. There was only one lawful outcome. The EAT substituted an order anonymising both parties, since naming the respondent would be likely to identify the claimant through the detail of the proceedings.

• Employment Appeal Tribunal: Allowed the claimant’s second appeal and substituted an order anonymising both parties.
• Employment Appeal Tribunal: An earlier appeal resulted in remission of a prior refusal of anonymity: [2023] EAT 92.
• Employment Tribunal, Nottingham: On remittal, Employment Judge McTigue refused the claimant’s rule 50 application. That decision was overturned by this appeal.