XY v AB

An employment tribunal considering permanent anonymisation under rule 50 must first decide whether a derogation from open justice is necessary under the common law. It must then check that conclusion against the relevant Convention rights, including articles 6, 8 and 10. The exercise is fact-specific and requires a proportionate balance; open justice remains the norm.

A withdrawn claim and the absence of a merits determination do not disapply open justice. They may nevertheless be material, particularly where a respondent has been deprived of an opportunity to answer serious allegations and there is evidence of misleading republication. An appeal court may intervene only for legal error or a conclusion plainly outside the reasonable range.

The appellant had brought sex discrimination allegations, including sexual-harassment allegations, against the respondent, a fellow employee. She withdrew her claim against him before the allegations were tested or determined.

Following a costs hearing, the Employment Tribunal made a permanent anonymity order for the respondent under rule 50 of the Employment Tribunals Rules of Procedure 2013. On reconsideration, it maintained the order. It relied on the withdrawn allegations, evidence that the appellant had breached reporting restrictions, and her false statements to third parties that she had won a sexual-harassment claim.

The appellant appealed, contending that the Employment Judge had failed to conduct the required open-justice and Convention-rights balancing exercise.

1. Appeal dismissed. The Employment Judge correctly applied the two-stage approach required by rule 50. She first considered whether permanent anonymity was necessary under the common-law exception to open justice. She then checked that conclusion against articles 6, 8 and 10 of the European Convention on Human Rights.

2. The Judge did not hold that open justice was disengaged because the claim had been withdrawn. She recognised the principle and assessed the diminished value, on these facts, of public scrutiny of a merits decision that had never occurred. The withdrawal and absence of tested evidence were relevant considerations, but did not create an automatic entitlement to anonymity.

3. The Judge was entitled to attach weight to the respondent’s position as a person named in proceedings he had not initiated; his inability, following withdrawal, to obtain a merits determination; and the appellant’s continued and misleading communications identifying him and asserting that she had succeeded. The cumulative circumstances could properly support the conclusion that, without limited permanent anonymity, the interests of justice would be frustrated.

4. The Judge also lawfully found a real risk to the respondent’s article 8 interests and treated the restriction as justified and proportionate when balanced against article 10 and open justice. The availability of possible defamation remedies did not make the appellant’s conduct irrelevant to the rule 50 assessment.

5. The appellate function was not to substitute a fresh assessment. The Judge had taken account of relevant matters, applied the correct law, and reached a conclusion within the reasonable range. The respondent’s EAT anonymity order was made permanent. The appellant was also granted permanent anonymity for separate reasons not connected with the merits.

• Employment Appeal Tribunal: Appeal dismissed; the respondent’s permanent anonymity order was maintained and extended to these proceedings: [2025] EAT 66.
• Employment Tribunal: At a reconsideration hearing, Employment Judge Russell maintained the respondent’s permanent anonymity order under rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Written reasons were sent on 21 December 2023.
• Employment Tribunal: A permanent anonymity order was first made on 6 March 2023 following a costs hearing. The appellant had withdrawn the substantive claim on 3 May 2022.