F v G

An employment tribunal must first determine whether rule 49 applies. Where proceedings involve an allegation of a sexual offence, anonymisation of the tribunal record is mandatory. Rule 49 does not itself create a reporting order and does not apply to the wider category of sexual misconduct.

Outside rule 49, tribunals have wider procedural powers to order anonymisation or reporting restrictions where necessary to protect Convention rights. They must balance the affected persons’ article 8 rights against open justice and article 10. The assessment requires close attention to the facts, the seriousness of the privacy intrusion, the scope and duration of the restriction, and whether less intrusive protection is sufficient.

The claimant, a care assistant at a further-education college for severely disabled students, brought successful claims of sex discrimination and unfair dismissal. Her complaint concerned being required to wash a male student shortly after assisted masturbation had occurred under the college’s Relationships and Sexuality Policy.

Before liability was determined, the Employment Tribunal made a restricted reporting order and then a purported permanent anonymity order under rule 49. The order concealed the identities of the parties, students and staff. The claimant appealed the permanent order, contending that it was unsupported by rule 49 and unjustified.

The central issue was whether permanent anonymisation was lawful and proportionate notwithstanding the principle of open justice.

1. Appeal dismissed. The Employment Judge erred in purporting to act under rule 49 of the Employment Tribunal Rules of Procedure. There was no allegation of the commission of a sexual offence within section 11 of the Employment Tribunals Act 1996, so rule 49 did not apply.

2. That error did not determine the appeal. The tribunal had wider procedural powers, recognised in X v Commissioner of Police of the Metropolis and A v B, to anonymise its record where necessary to protect article 8 rights. Those powers could protect the rights of non-parties as well as parties.

3. The required exercise was a fact-sensitive balance between article 8, article 10 and open justice. Individual students who received assisted masturbation, and individual staff who volunteered to assist, had strong privacy interests. Their identities could properly be withheld.

4. Permanent concealment of the claimant’s and college’s identities was also proportionate. Naming the college would identify a small, readily identifiable group of disabled male resident students as persons to whom assisted masturbation was available. That would expose their intimate private lives to humiliation and intrusion. The same risk could affect staff as a group. The public interest in full publication was substantial but did not outweigh those third-party interests on these unusual facts. The hearing and reasons remained public subject to identifying redactions.

5. The EAT therefore upheld permanent anonymisation and made a corresponding anonymisation order for its own record. Any protection against publication from independent knowledge after the existing rule 50 order expired would require a further explicit order.

• Employment Appeal Tribunal: appeal dismissed. The EAT upheld permanent anonymisation, but on wider procedural powers rather than rule 49.
• Employment Tribunal: Employment Judge Dean made a purported permanent anonymity order under rule 49 alongside a restricted reporting order under rule 50. The substantive claims were later upheld in an anonymised judgment sent to the parties on 11 April 2011.