X v Y

An Employment Tribunal may have to consider a non-disclosure order of its own motion under rule 50 where sensitive personal information creates a clear privacy risk, even though no party applied for anonymity. The exercise requires a proportionate reconciliation of open justice, privacy and freedom of expression.

Relevant evidence that formed part of the tribunal's reasoning should not ordinarily be removed from its reasons. Redaction would give a misleading account of the decision. Anonymisation is the less intrusive safeguard and will ordinarily be preferable. A rule 50 application may be made after judgment; the tribunal is not functus officio merely because its file is otherwise closed.

The appellant brought Employment Tribunal claims for unpaid wages, holiday pay and other matters. His father represented him at the hearing and gave evidence concerning the appellant's transgender status and mental health in support of an extension of time. The Employment Judge allowed the wages and holiday-pay claims to proceed, but the published reasons included that sensitive evidence.

Ten days after judgment, the appellant asked for the material to be removed and for his privacy to be protected. The Employment Judge declined the request because no rule 50 application had been made at the hearing and the tribunal file was closed. The appeal concerned whether the reasons should be redacted, whether the parties should be anonymised, and whether a post-judgment rule 50 application could be considered.

1. Appeal allowed. The Employment Judge did not err by recording the appellant's transgender status and mental-health history. The evidence was directly relevant to whether it had been reasonably practicable to present the claim in time, and it had been relied on in deciding that issue.

2. Removing or rewriting relevant findings after judgment would undermine open justice by producing reasons which did not accurately reflect the judge's reasoning. Although rule 50 permits restrictions on disclosure, redaction of substantive reasons would be proportionate only in a wholly exceptional case. Anonymisation was the less drastic and adequate means of protecting the appellant's article 8 rights.

3. The Employment Judge was nevertheless plainly wrong not to consider anonymisation of his own motion. Rule 50(1) permits an order at any stage, on the tribunal's initiative or on application. This was a rare case requiring that consideration: the judge knew of the appellant's fragile mental health and transgender status, the appellant was unrepresented and absent through ill health, and publication posed a substantial privacy risk.

4. Had the Employment Tribunal considered the matter, anonymisation was the only possible outcome. The appellant's article 8 interests greatly outweighed the limited effect on open justice. There was no material public interest in identifying the parties in this routine time-limit issue, and identifying the respondent could indirectly identify the appellant. The EAT therefore substituted an order anonymising the appellant, respondent and appellant's father in both the Employment Tribunal and EAT records, indefinitely and subject to liberty to apply.

5. The appellant's email ten days after judgment should also have been considered as a request for anonymity. A rule 50 order may be sought after judgment; the tribunal was not functus officio, and the article 8 duty was continuing. The request was not, however, an application for reconsideration under rules 70 to 72, since anonymity is not a judgment finally determining a claim.

6. For County Court enforcement, the appellant could supply the operative part of the Employment Tribunal judgment without the reasons. The EAT authorised redaction of the reasons for that enforcement purpose only.

• Employment Appeal Tribunal: appeal allowed. The EAT substituted indefinite anonymisation orders for the Employment Tribunal and EAT proceedings.
• Employment Tribunal: judgment sent to the parties on 2 February 2018. The appellant's wages and holiday-pay claims were allowed to proceed; the later request to remove sensitive information and protect privacy was declined.