15th April 2022

Keep my name out of your Judgements! Restricted Reporting Orders and their use by Employment Tribunals

Background

Will Smith’s recent Oscars outburst demanding that Chris Rock refrain from using his wife’s name as part of his comedy routines (to put it politely), raised an interesting thought in my mind about how similar requests might fare were they to be made in the context of an employment tribunal.

It is a fundamental principle of the successful operation of the employment tribunals system, that a public record is kept of tribunal decisions. Indeed, Rule 14 of the Employment Tribunals Regulations 2013 (“the 2013 Rules”) requires the Lord Chancellor to maintain a register containing a copy of all judgements and written reasons issued by a tribunal in an employment dispute.

As with most things, however, there are always exceptions, and the rules relating to the publishing of employment tribunal decisions are no different.

Rule 50 of the 2013 Rules provides that, a tribunal may, at any stage of the proceedings “make orders with a view to preventing or restricting the public disclosure of any aspect of those proceedings, so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person”.

The interest of justice

It has traditionally been fairly difficult to satisfy the Rule 50 requirements, and restricted publications have generally been reserved for cases involving things like national security or sexual misconduct. However, the advent of the European Convention on Human Rights (“ECHR”) has led to tribunals taking a more sympathetic view of restricting publication of its judgements. In particular, Article 8 of the ECHR protecting an individual’s right to a private life, has been an important factor in restrictions on publicity being imposed in wider circumstances.

In coming to a decision on whether or not to restrict publication, the tribunal must engage in a balancing exercise, weighing up the need to protect an individual’s Article 8 rights with the wider principle of open justice and the right of individuals and the press to report on tribunal proceedings in line with the ECHR’s Article 10 right to freedom of expression.

Case Example

One particular case where this balancing exercise was undertaken, this time by the Employment Appeal Tribunal, was Ameyaw v Pricewaterhousecoopers Services Limited. In this case, an employee had sought to have her name anonymised from a tribunal judgement which described her “scandalous and vexatious conduct” at an earlier preliminary hearing. Whilst the tribunal recognised that the right to freedom of expression may need to be qualified in some circumstances to take account of an individual’s privacy rights, it had to be established by clear and cogent evidence that harm would be done to the privacy rights of the person seeking the restriction. The fact that the publication of the proceedings may be “painful, humiliating, or deterrent” did not mean that it should not be made public.

It’s important to note that each case will ultimately be decided on its individual merits, and that there is no clear formula for the tribunal to follow when balancing competing Convention rights. Ultimately however, the principle of open justice remains a tough one to displace.

If you require any employment law advice, please contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Ethan Laing, Trainee Solicitor
Employment
Blackadders LLP

www.blackadders.co.uk

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