Most employers who have defended an employment tribunal claim will have at least some sympathy for celebrity cook Annabel Karmel. Defending a claim of sexual harassment and race discrimination brought by a former employee, Ms Karmel sought (successfully at first) an anonymity order to prevent her, her company or the claimant being identified in the context of the allegations in any publication. However, the Daily Mail then successfully applied to have the order overturned and the case quickly settled before the substantive issues could be heard in a public hearing.
Reputational risk is a significant consideration for employers when facing allegations from employees. Some employees, on the other hand, may be deterred from bringing a tribunal claim because they fear aspects of their private lives becoming public record.
It is, at least in theory in certain cases, possible to keep allegations being made as part of an employment tribunal claim or the identities of individuals involved secret. However, in order to successfully apply for the tribunals to exercise their powers in this regard, there will need to be compelling reasons why the presumption in favour of open justice should be overruled.
What powers do tribunals have?
The Employment Tribunal Rules allow tribunals to make orders to prevent or restrict the public disclosure of any aspect of those proceedings. Such orders may include (but are not limited to):
- an order that a hearing should be heard, in whole or in part, in private;
- an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public;
- an order for measures preventing witnesses at a public hearing being identifiable by members of the public; and
- a restricted reporting order in cases involving sexual misconduct and/or disability discrimination.
Case law has also made it clear that the tribunals may go beyond the express provisions in the Tribunal Rules in order to protect rights under the European Convention of Human Rights.
When will a tribunal exercise its powers?
The Tribunal Rules allow a tribunal to exercise its powers if it considers it necessary in the interests of justice, in order to protect the Convention rights of any person or if certain information falls within specific, statutory categories of information which should not be made available to the public.
In each circumstance, the tribunal will weigh the need to keep certain information confidential against the principle of open justice and the Convention rights of others. For example, in Ms Karmel’s case, her Article 8 Convention right to private and family life would have been weighed against the Daily Mail’s right to freedom of expression under Article 10.
Making an application
The applicant for an order does not need to be a party in the case and a party may make the application on its own behalf as well as on behalf of another person.
Proportionality is the key principle tribunals will apply when considering applications: the tribunal will not go any further than it considers necessary to protect the rights of the applicant. Therefore, applicants need to consider carefully exactly what order they require, to whom it should apply and for how long.
The benefits of obtaining the protection should be weighed against the potential cost if the application is challenged. If the primary purpose is to protect the reputation of the applicant, it should be remembered that the existence of a restriction (or an application for a restriction) may be as damaging to the applicant’s reputation as the information they wish to restrict – as Ryan Giggs learnt to his cost a few years ago. With the general public backlash against anything that looks like “gagging”, this should be a key consideration when deciding whether to make an application.