Harassment cases and the right to anonymity

13 May 2019

Usually, employment law cases are conducted in public and the press may report on them. In cases involving sexual harassment and sexual offences, employment tribunals may grant privacy orders in the interests of justice or to protect people's privacy under the European Convention on Human Rights ('ECHR').

Orders can include anonymising the parties, holding hearings in private and restricted reporting orders. In granting these orders, the employment tribunal must properly balance privacy rights against the principle of 'open justice'.

In A and B v X and Y and Times Newspapers Limited, a household name (Y) was accused of harassment, including alleged sexual offences. A and B brought claims against their employer (X) and Y. The employees were entitled to anonymity under the Sexual Offences (Amendment) Act 1992. They also sought an anonymity order in the employment tribunal. X and Y also asked for anonymity and a restricted reporting order. The employment tribunal refused everyone anonymity. However, they granted a restricted reporting order until after any remedy hearing. The judge said the employees had the equivalent of such an order because of their anonymity under the Sexual Offences Act, and Y should be similarly protected. It would ensure Y remained innocent until proven guilty and guard against misreporting.

The Employment Appeal Tribunal said the tribunal had not applied the test properly. Conducting the hearing in public was not enough to achieve open justice. The tribunal should have specifically considered the issue of press reporting. The danger of misreporting was irrelevant - open justice assumes reporting will be accurate. The tribunal was wrong to restrict reporting in order to put Y in the same position as the employees. The Sexual Offences Act chose to deal with victims and alleged perpetrators differently and that must be respected. It was also wrong to grant the order until remedy. The order should only be in place until the truth about the allegations is known, which is the liability decision. The case was sent back to a new tribunal panel to consider the restricted reporting order issue again.

Restricted reporting orders are rare. Privacy rights must be carefully balanced against the principle of open justice. Interestingly, the fact that Y is famous was irrelevant to the issue of restricted reporting. The rich and famous might get special treatment elsewhere, but not in the employment tribunal.

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