Protecting the Anonymity of Parties – EAT Supplements Its Own Rules of Procedure

On 5 March 2010, the Employment Appeal Tribunal (President Underhill presiding) gave a judgment on the question of whether it had powers to protect the anonymity of a party in a case involving allegations of sexual offences – A v B (UKEAT/0206/09/SM). The background to the judgment was that a claimant had been granted permanent anonymity by the Employment Tribunal under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.49. The anonymity order had been made in circumstances where the claimant, who was claiming unfair dismissal, had been dismissed in response to a disclosure by police that he had been involved in paedophile activity in Cambodia and was believed to represent a risk to children. The Claimant had in fact been acquitted in the Cambodian courts and there was no reason to believe he faced prosecution in the UK. On appeal against the tribunal’s judgment to the EAT, the question arose as to whether the EAT had power to maintain the anonymisation when dealing with the appeal. This was a difficult question to resolve because, on their face, the EAT Rules 1993 read together with the Employment Tribunals Act 1996 did not provide for such a power. In a judgment which reflects the overriding importance of human rights considerations, the EAT held that it did have such a power. In reaching this conclusion, the EAT took into account: (a) that the loss of the claimant’s anonymity would involve a serious breach of his convention rights, particularly the Article 8 right to privacy; (b) that, on the facts of the case, the need to protect the claimant’s privacy under Article 8 outweighed the imperative towards freedom of expression embodied in Article 10 of the Convention; and (c) that, in the circumstances, s. 6 of the Human Rights Act 1998 required the EAT to interpret its powers so as to include a power to protect the claimant’s anonymity.

In the course of its judgment, the EAT considered the very recent judgment of the Supreme Court in HM Treasury v Ahmed [2010] UKSC 1; [2010] 2 WLR 325. In that case, the Supreme Court held that the old common law rule that a party forfeited his right to privacy if he chose to bring proceedings (subject to certain limited statutory exceptions) required modification in the light of the Convention. It concluded that, in a case where full publication of the proceedings would have an impact on the Article 8 rights of a party, the court will have to conduct a balancing exercise between that right and the right to freedom of expression under Article 10 (see per Lord Roger, para. 43). This is precisely the balance which the EAT sought to strike in the Av B case.