M v Northern, Eastern and Western Devon Clinical Commissioning Group (New Devon CCG) (Debarred)

This is an appeal against a decision of an Employment Tribunal refusing the appellant’s application to remove a decision of an Employment Tribunal from the Public Register of ET Judgments. On a date prior to September 2017, the appellant brought a claim against the respondents, who are debarred from taking part in this appeal, which was subsequently withdrawn by him. A judgment dated 17 September 2017 was drawn up which records the names of the parties and the following text: “The proceedings are dismissed following a withdrawal by the claimant.”

Since October 2020 such judgments have been exempted from the requirement that they be placed on the Register but this change in the rules was not made retrospective.

The appellant’s case is that he was unaware of the judgment on the Public Register until 2022 and thereafter sought to have his personal details anonymised. After some procedural stumbles, the matter was put before an Employment Judge, as it happens the same judge who made the administrative order in 2017, who declined to make the order sought under rule 50. His reasons were set out at follows:

“There is no basis upon which a rule 50 order can be made in this case for the following reasons. Orders under rule 50 are generally but not always made in cases to which sections 10 to 12 of the Employment Tribunals Act... principally in cases in which allegations of sexual misconduct and/or details of disabilities are disclosed. The judgment contains no indication of the nature of the claims that were brought. Rule 50 also operates to protect Convention rights. The Article 8 right, respect for private and family life, is not invoked here. The fact of the existence of the judgment online does not interfere with the claimant’s Article 8 rights. The judgment has now been online for many years.”

The matter was listed for a full hearing on the sift by the then President Eady J in November 2024. She summarised the grounds and commented as follows:

“4.

The claimant now seeks to appeal against this decision on the following grounds:

(1)

That the ET failed to consider the proportionality of refusing to grant a rule 50 order in the case and did not explore the available options so as to achieve a fair balance.

(2)

The tribunal misinterpreted rule 50 which was not limited to cases involving sexual misconduct or disability.

(3)

That rule 50 operated to protect rights under the ECHR and the online publication of the judgment constituted interference with the claimant’s Article 8 rights.

(4)

The fact that the judgment had been online for many years did not diminish the need for the order.

(5)

The ET failed to take into account the impact of the publication on the claimant’s ability to find alternative employment.

(6)

The claimant’s ET case had never gone before an ET at the hearing as it was withdrawn following an out of court settlement but the publication of the judgment meant that a search for the claimant’s name would provide access to the decision such that a negative impression might be formed about him.

6.

For reasons provided separately, I am satisfied that proposed ground 2 raises no arguable error of law and is properly to be characterised as totally without merit.

7.

I am however persuaded that a question of law is identified by grounds 1 and 3 to 6. Specifically, it would appear that the tribunal proceeded on the basis that Article 8 of the ECHR was not invoked in this case when the claimant’s application had in fact stated that he was relying on his ‘human rights’ in respect of an ‘isolated event in my professional and personal life’ (see grounds 1 and 3). In these circumstances, it seems to me that a question arises as to whether a balancing exercise was undertaken having regard to the matters identified at grounds 4 to 6.”

It is important to understand the limit of the EAT’s role on an appeal of this nature. It is the Employment Tribunal and not the EAT which carries out the task of setting out and evaluating factual matters. The appellant has set out in detail in his skeleton argument various submissions which he advances as supporting his case for removal of the judgment in question. These are not matters for me. Neither is it appropriate for me to make any comment whatsoever as to the merits or otherwise of the arguments. The task for the EAT is simply to decide the question whether the ET erred in law. A balancing exercise by definition can result in more than one possible outcome. It is therefore not possible for the EAT to substitute the tribunal’s decision and a finding in favour of the appellant at this stage inevitably means that the matter will be remitted to a differently constituted ET to evaluate the matter afresh.

The matters set out in the expanded grounds of appeal underground 6 asserting breaches of GDPR and other violations are far wider than the original ground which was allowed through and I do not propose to address them.

There is considerable case law dealing with the way in which any court or tribunal must balance the competing factors at play in an application for anonymisation under rule 50. In Ameyaw v Pricewaterhousecoopers Services Ltd: UKEAT/0244/18, HHJ Eady QC as she then was set out the relevant principles saying this at paragraph 44:

“Taken at face value, the power to restrict publicity, whether for reasons of national security or otherwise, stands in contrast to the transparency that would otherwise be required by the principle of open justice. As already stated, it is a power, however, that acknowledges the fact that other competing rights and interests may sometimes require that transparency is curtailed. The rights provided by both Articles 6 and 10 ECHR are qualified and allow that interests of national security or other Convention rights (including the right to respect for a private life under Article 8) may outweigh the requirement for public access to judicial proceedings or pronouncements. In proceedings before the ET, the balancing out of these competing interests or rights is governed by the 2013 Regulations and the ET Rules, which provide (to summarise):

44.1

That the Lord Chancellor is required to maintain a public Register of all ET Judgments and Written Reasons...

44.2

Subject to Rules 50 and 94, the ET is required to enter on to the Register a copy of every Judgment and document containing Written Reasons for a Judgment...

44.3

In national security cases, Rule 94 ET Rules permits the ET to make certain redactions from the Judgment and Written Reasons and - significantly - to determine that the Written Reasons will not be entered on to the Register in some cases.

44.4

In cases involving confidential information or where required by the interests of justice or in order to protect rights under the ECHR, Rule 50 ET Rules permits the ET to make certain redactions from the Judgment and Written Reasons (including the anonymisation of the parties) but makes no provision for the ET to do other than enter the Judgment and Written Reasons on to the Register.”

45.

Although an ET’s power to restrict the publication of Judgments and Written Reasons is thus not unlimited, there is a broad discretion vested in the ET under Rule 50, which is not limited in time... That said, it is likely to be a rare case where other rights (including those derived from Article 8 ECHR) are so strong as to grant an indefinite restriction on publicity... the requisite balancing exercise in each case is for the ET (see the discussion of this exercise and the respective roles of the first instance and appellate tribunals in Fallows at paragraphs 49 to 52).”

In the present case, because the Employment Judge did not consider that Article 8 had been invoked, the balancing exercise which the law requires was not carried out. In my judgment, that was based on a false premise. Mention of human rights and of private life had indeed been raised and thus Article 8 was engaged. It follows that the appeal succeeds and the matter is to be remitted to a differently constituted Employment Tribunal for consideration of all the evidence in accordance with the principles stated above.