Protecting Privacy in Disability Cases in the ET
A Guide to Anonymity and Disclosure Restrictions
The Employment Tribunal (ET) system in the United Kingdom operates under a fundamental principle of "open justice", ensuring transparency and public access to proceedings. However, in sensitive cases, particularly those involving disability discrimination, the need to protect an individual's private life often conflicts with this principle. Fortunately, the Employment Tribunal Procedure Rules (ETPR) provide mechanisms for claimants to seek privacy and restrictions on public disclosure.
The Legal Framework for Privacy
The primary mechanism for protecting privacy in the ET is Rule 49 of the Employment Tribunal Procedure Rules 2024 (formerly Rule 50 of the 2013 Rules). This rule grants the Tribunal the power to "make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person". When considering such an order, the Tribunal must give "full weight to the principle of open justice and to the Convention right to freedom of expression".
Specific measures that the Tribunal can order under Rule 49 include:
Conducting all or part of a hearing in private.
Anonymising the identities of specified parties, witnesses, or other persons referred to in proceedings, whether in the course of a hearing, in listing, or in documents entered on the public register. This can be achieved through the use of random initials.
Implementing measures to prevent witnesses at a public hearing from being identifiable by members of the public.
Issuing a Restricted Reporting Order (RRO), particularly in the terms of Section 11 (sexual misconduct) or Section 12 (disability cases) of the Employment Tribunals Act 1996.
In disability cases, Section 12 of the Employment Tribunals Act 1996 allows for RROs where evidence of a "personal nature" (e.g., medical or intimate information causing significant embarrassment) is likely to be heard. These RROs typically have effect until the "promulgation of the decision of the Tribunal".
It is important to note that the Lord Chancellor is required to maintain a public register containing copies of all judgments and written reasons issued by a Tribunal, unless specifically exempted by rules like Rule 49 or 94 (national security proceedings).
Making an Application for Privacy
A party can apply for a privacy order under Rule 49 at any stage of the proceedings, or the Tribunal may make one on its own initiative. If a party affected by an order has not had a reasonable opportunity to make representations before it was made, they can apply in writing for the order to be revoked or discharged.
A key principle in these applications is that the burden of establishing any derogation from the fundamental principle of open justice lies on the person seeking that derogation. This must be established by "clear and cogent evidence that harm will be done by reporting to the privacy rights of the person seeking the restriction on full reporting so as to make it necessary to derogate from the principle of open justice".
Key Considerations and Challenges
Recent case law sheds light on the nuances of these applications:
Open Justice vs. Privacy: The courts consistently reiterate the profound importance of open justice, a principle deeply embedded in common law and reflected in Article 6.1 of the European Convention on Human Rights (ECHR). As Baroness Hale of Richmond noted, "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity". However, this principle is not absolute and must be balanced against other fundamental rights, such as the right to respect for private life under Article 8 ECHR. The right to protection of one's reputation and honour is considered part of the right to respect for private life under Article 8.
"Public Domain" Misconception: In F v J [2023] EAT 92, the Employment Appeal Tribunal (EAT) clarified a common misconception. The mere act of presenting an Employment Tribunal claim, or its initial consideration, does not automatically cause the claim or its contents to enter the public domain. An Employment Judge's assumption that a claim was already public simply by being presented was deemed an error of law. This means that a claimant's privacy rights can still be significantly engaged even after initiating proceedings.
Evidence of Harm and Fair Opportunity: The requirement for "clear and cogent evidence of harm" is crucial. In F v J , the EAT highlighted that the Tribunal must ensure a claimant, particularly a litigant in person with a disability, has a fair opportunity to present such evidence. This includes allowing them to produce witness statements and relevant documentary evidence to support their contention that public disclosure would impact their future employability or cause distress. The EAT noted that drawing adverse inferences about a claimant's candour without giving them an opportunity to give sworn evidence on the matter is improper.
Scope of Secrecy and Redaction: While anonymisation of parties and witnesses is a possibility, the Court of Appeal in Q Ltd v L [2020] ICR 420 firmly stated that completely prohibiting the publication of an Employment Tribunal judgment (i.e., preventing it from being entered on the public register) is "hard to imagine" in cases not involving national security. The court emphasized that allowing judgments to be entirely secret would go against the fundamental principles of open justice.
Furthermore, Q Ltd v L held that it is "wholly unjustifiable" to redact information relating to disabilities and their consequences if doing so would "fundamentally undermine understanding of the employment tribunal’s judgment". The acceptable forms of redaction are generally limited to anonymising individuals by random initials and making any other redactions "reasonably necessary to preserve the anonymity of the individuals concerned". The court noted that individuals whom the claimant alleges discriminated against them must be allowed to see the full judgment as a matter of "elementary justice".
Duration of Orders and the EAT's Role: While RROs under Section 12 are often time-limited until the judgment's promulgation, the EAT's general power to regulate its own procedure (under Section 30(3) of the Employment Tribunals Act 1996), when read in light of Convention rights, allows it to issue post-promulgation RROs or anonymity orders. This provides a mechanism to prevent the anomaly where a judgment is permanently anonymised (as required in certain cases under EAT Rule 23(2)) but the proceedings could still be reported in an un-anonymised way by the press. The EAT has stressed that where permanent anonymisation of its judgments is required by rule, this becomes a "strong factor in favour of the exercise of the discretion to make either a pre- or post-promulgation RRO" to ensure the objective is not defeated.
Practical Advice for Claimants
For claimants in disability cases seeking privacy protection, it is vital to:
Understand the Balance: Be aware that the Tribunal must weigh your Article 8 privacy rights against the principle of open justice and the media's Article 10 freedom of expression.
Make a Clear Application: Request specific measures (e.g., anonymisation, private hearing, RRO) and clearly articulate why these are necessary to protect your privacy and Convention rights.
Provide Cogent Evidence: Support your application with clear and compelling evidence demonstrating the harm that public disclosure of your identity or personal information would cause. This may include medical evidence, personal statements explaining the impact on your well-being or professional life, or, if available and relevant, statistical data.
Seek Clarification on Evidence: If unrepresented, ensure the Tribunal provides a fair opportunity to present your evidence, asking for guidance on how to do so if necessary.
While achieving full secrecy of a judgment is highly unlikely, the Employment Tribunal retains the power to implement significant measures, such as anonymisation of parties and witnesses, to protect privacy where it is necessary and proportionate.
