L v Q Ltd

Mr L brought claims of direct and indirect discrimination, discrimination arising from disability, harassment and victimisation against his employers Q Ltd in the London Central Employment Tribunal. Shortly before the hearing was due to take place his solicitors applied to the Tribunal for a number of adjustments and special orders in relation to the hearing, none of which had been sought at earlier preliminary hearings. The most important was that the entire hearing should be held in private; that the names of the parties and the witnesses should be anonymised; and that the judgment should not be placed on the Register. All these applications were granted.

There were also some adjustments sought relating to the conduct of the hearing. For example, the Claimant sought a direction that only one of the Respondents’ witnesses should be permitted to be in the tribunal room at any one time; a compromise was agreed by which two of the six witnesses would remain in the room. The Claimant applied to be told in advance the questions he would be asked in cross-examination: it was agreed that he would be given an indication of the order of topics about which he would be asked. These and other adjustments concerning who sat where in the room and what breaks should be taken are not in issue on this appeal.

The hearing took place over seven days beginning on 23 April 2018 before Employment Judge Lewis and two lay members. Both parties were represented by counsel. In a reserved judgment sent to parties on 21 May 2018 the tribunal upheld some of the substantive claims and dismissed others. Their decision, which runs to 44 pages, anonymises the parties and other individuals mentioned.

Q Ltd appealed to the EAT against the substantive decision of the ET insofar as it upheld the claim that the company had discriminated against the Claimant by failing to make reasonable adjustments to his work. The company also appealed from the orders made by the ET that the judgment would not go on the Register; that the case was to be referred to as L v Q and the witnesses by their initials; and that any report of the proceedings would not identify the parties nor any of the witnesses.

The appeal was heard by Slade J (sitting alone) in open court at the EAT on 20^th December 2018. She circulated a draft judgment in which, on the substantive matters, she dismissed one ground of appeal but allowed a second and remitted the reasonable adjustments claim to a differently constituted ET for determination. We are not concerned today with the correctness or otherwise of the substantive decisions of the ET or the EAT.

Slade J upheld the orders of the ET preventing identification of the parties and witnesses and granting anonymisation. Her own judgment maintains that anonymisation. However, she set aside the order of the ET directing that their judgment was not to be entered on the Register. She directed that “some of the initials used in anonymisation will be changed and passages in the judgment of the ET redacted to the extent reasonably necessary to preserve the anonymity of the parties and witnesses.”

Shortly before the EAT judgment was to be handed down, in addition to making agreed redactions to preserve the anonymity of parties and witnesses, counsel for the

Slade J refused to order any further redaction either of her judgment or of the ET’s judgment in the event of it being placed on the Register. She suspended execution of the order allowing the judgment of the ET to be placed on the Register for 21 days and thereafter, if an application were made to this court, until determination of the appeal. She said that the EAT had no power to make an order giving the Claimant the option of withdrawing his claim rather than have the claims made public. This was clearly right: a party shown a draft judgment cannot prevent its publication by withdrawing the claim.

She granted a 48 hour stay on publication of the EAT’s judgment to enable an application to be made to this court. By the time I was persuaded that a short stay was warranted the EAT had perfectly properly published the judgment, although it was later removed from the website.

It seemed to me that the issues about publication of the judgments, in particular that of the ET, should be dealt with very promptly at a rolled-up hearing before this court irrespective of whether permission is to be granted against Slade J’s decision on the substantive discrimination claims, or indeed of whether Q Ltd may apply for permission to cross-appeal against those aspects of the substantive decision of Slade J which were unfavourable to them. Accordingly, the issues before us today are (a) whether the judgment of the ET should be entered on the Register, (b) if so, whether it should be further redacted so as to remove references to the Claimant’s disabilities and their consequences, and whether any further redaction should be made to the judgment of the EAT on the same lines.

I should make it clear that I for my part have very serious doubts about the decision of the ET to conduct this hearing in private. However, that is not formally before us on this appeal. The orders anonymising the parties and the witnesses, upheld by Slade J, are likewise not in issue on this appeal: Ms Tharoo indicated that, although her clients did not agree with them, “given where we are now” Q Ltd would not seek permission to appeal against them. It is also common ground that any anonymisation should extend to all the individuals referred to in the judgment of the ET, whether or not they were called as witnesses.

There are specific statutory powers under the Employment Tribunals Act 1996 and the 2013 Rules of Procedure dealing with restrictions on publication and on public

National security cases apart, the provisions of the 1996 Act which deal with this topic are the following:-

I turn to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1 to which contains what are generally referred to as the ET Rules. Regulation 14(1) requires the Lord Chancellor to maintain a register containing “a copy of all judgments and written reasons issued by a Tribunal which are required to be entered in the Register under Schedules 1 to 3.”

Rule 67 states that “subject to rules 50 and 94, a copy shall be entered in the Register of any judgment and of any written reasons for a judgment”. Rule 94, is, as already mentioned, confined to national security cases.

Rule 50, which is headed “Privacy and restrictions on disclosure”, provides as follows:-

“50.—(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.

(2)

In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.

(3)

Such orders may include—

(a)

an order that a hearing that would otherwise be in public be conducted, in whole or in part, in private;

(b)

an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record;

(c)

an order for measures preventing witnesses at a public hearing being identifiable by members of the public;

(d)

a restricted reporting order within the terms of section 11 or 12 of the Employment Tribunals Act.

(4)

Any party, or other person with a legitimate interest, who has not had a reasonable opportunity to make representations before an order under this rule is made may apply to the Tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing.

(5)

Where an order is made under paragraph (3)(d) above—

(a)

it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification;

(b)

it shall specify the duration of the order;

(c)

the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and

(d)

the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing.

(6)

“Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998.”

In the present case the ET justified their orders for a private hearing, anonymity and a direction that the judgment would not go on the Register in the following two paragraphs, which Ms Palmer for the Appellant accepted do not amount to adequate reasoning :-

“We have carefully considered the very high premium placed on the principle of open justice. However, this is one of those rare cases where we consider the balance to fall in favour of the orders we have made. We have taken account of the medical evidence, including from a clinical psychologist, which explains that the claimant is experiencing adjustment disorder, on top of his other disabilities, as a result of anxiety about the Tribunal claim. He has expressed thoughts of not wanting to wake up, though no intent to harm himself at present.

We were told the Claimant was also anxious about other people being in the room. He is a self-conscious and embarrassed about the manifestations of his disabilities in the hearing. … we are concerned that his added worries about a public hearing will interfere with his concentration and stress levels and effect his ability to give evidence adequately. Indeed, we are told by his counsel that he is wondering whether or not he would feel able to go ahead if such orders were not made.”

In the EAT Slade J referred to what she rightly described as the helpful analysis of

In R(C ) v Secretary of State for Justice [2016] 1 WLR 444 Baroness Hale of

Putting national security cases to one side, there is no explicit power in the Rules to prohibit publication of the judgment altogether. In a sexual offences case (s 11(1)(a) of the Act) the ET can take steps to secure that registration is “so effected as to protect identities”. As stated above, I doubt very much whether that provision or the Rule made under it allows judgments to be kept off the Register; and even if it does, there is no equivalent power conferred by s 12 in disability cases.

In Fallows v News Group Newspapers Ltd [2016] IRLR 827, a case in which allegations of sexual misconduct had been made, Simler P noted that Rule 50 (1) empowers ETs to “make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person…”. She continued (at [38-39]):-

“There is no temporal or other limitation on the type of order that may be made under this Rule. Rule 50 (3) is plainly not exhaustive of the types of orders that may be made, but merely identifies what orders may be included. Parliament has given a wider power in Rule 50(1) notwithstanding the existence of a more restrictive, specific power in Rule 50(3)(d) to make RROs “within the terms of section 11 or 12”, recognising in light of the authorities referred to above and the Underhill Review, that a wider power was required. The obvious inference, having regard to the genesis of this rule, is that Parliament intended Employment Tribunals to have the power to make RROs in a broad range of circumstances, and to an extent that went wider than the power strictly defined in sections 11 and 12 ETA 1996.

Although “restricted reporting order” is a term of art defined by section 11(6) ETA 1996, and there is no reference in Rule 50 to any other kind of RRO, there is no reason (as Underhill J said in F v G) why the abbreviation RRO should not be used when making an order preventing or restricting disclosure of any aspect of proceedings under Rule 50(1) provided that it is understood as applying to a wider order restricting the reporting of identifying matter than would otherwise be permitted under section 11 and Rule 50(3)(d) alone.” [emphasis added]

Assuming, without deciding, that these observations are correct, they deal with the issue of a permanent order, in a case involving allegations of sexual misconduct, preventing the publication of matter which would identify the complainant or an alleged perpetrator or person affected. They cannot be used to support an order keeping an ET judgment off the Register altogether.

Rule 50(3) introduces a list of specific powers with the word “include”: and Ms Palmer relies on that when arguing that Rule 50 as a whole must be construed so as to allow the ET to keep its judgment secret “to protect the Claimant’s Article 8 rights”. But that would be the thin end of an enormous wedge, not confined to cases in employment tribunals nor to claims for disability discrimination. The proposition must be that if a claimant – or at least a claimant with a disability - says: “I do not want a public hearing or a public judgment and if you insist on one I would be so embarrassed that I will withdraw my claim: therefore you must keep the judgment secret, otherwise you are depriving me of my Article 8 Convention rights”, the judgment must be kept secret. That would go against all the authorities on open justice cited by Lady Hale in C and by Judge Eady in Ameyaw and which I need not repeat. Indeed, although the ET in the present case mentioned the importance of the open justice principle, they then entirely negated that principle by holding a private hearing followed by the handing down of a judgment which they ordered should not go on the Register.

The course followed in this case of attempting to keep the judgment secret was not merely contrary to principle but presents practical difficulties too. The individuals whom the Claimant was alleging had discriminated against him, or harassed or victimised him, must surely be allowed to see the ET judgment as a matter of elementary justice. Ms Palmer, indeed, accepted that those individuals would have to be allowed to see the judgment. We asked Ms Palmer whether they would be in contempt and liable to imprisonment if they told their colleagues of the contents of the judgment: the answer, in my view, is clearly that they would not be and should not be.

Ms Palmer submitted that it should be for the ET, not the EAT or this court, to decide in the exercise of a broad discretion under Rule 50 how to protect the Claimant’s right to privacy in a manner which upholds the principle of open justice. But that begs the question of how broad the discretion is, and specifically whether it extends to a power to order that the judgment must not be published on the Register.

It is unnecessary to go so far as to say that there will never be a case (other than one concerning national security) in which an ET judgment can be kept secret by not being entered on the Register. I will only say that as at present advised I find it hard to imagine the circumstances in which it would be right for an ET acting under Rule 50 to withhold publication of a judgment altogether. If there is ever to be such a case, certainly this one is not it.

I would therefore refuse permission to appeal from the order of Slade J setting aside the order of the ET that, even in anonymised form, its decision was not to be entered on the Register.

I have already noted that there is no appeal to us by Q Ltd against the anonymisation of the parties and witnesses and others referred to in the ET judgment. Ms Palmer’s second argument was that if the judgment of the ET is indeed to be published, it should only be in a form which describes the Claimant’s disabilities as “Condition A” and “Condition B”; that Slade J’s own judgment should be similarly redacted; and that details of an embarrassing incident (which is also mentioned in the EAT judgment) should be deleted from the published version of the ET’s decision. 29.I would refuse permission to appeal against Slade J’s refusal to make any such orders.

Ms Palmer told us that Mr L is still employed by the Respondents and wishes to return to work though he is at present working from home. A further ET claim has apparently been issued recently in respect of that alleged detriment, though it has not yet been served on the Respondents. Ms Palmer complains that it would be unfair to the Claimant, who proceeded with the claim in the ET on being told by them that the hearing would be in private and that the judgment would not be published, now to have details of his disabilities made public even in anonymised form.

The course which was taken by the ET cannot, in my judgment, justify any redactions to its judgment beyond what was specified by Slade J, namely anonymisation of the witnesses and other individuals referred to in the judgment by random initials rather than their true initials, and any other redactions “reasonably necessary to preserve anonymity” of the individuals concerned. Ms Tharoo told us that the Respondents did not object to the job titles of witnesses or others in the Claimant’s team (as opposed to those in the Respondents’ HR Department) being redacted in the ET’s judgment, and were content to interpret Slade J’s order in that way. So am I. No further redaction is required to the judgment of Slade J, which can now be published.

Counsel should submit to Employment Judge Lewis, within 14 days of this judgment being handed down, a list – I very much hope an agreed list – of the proposed redactions to the ET judgment necessary to give effect to the Order of Slade J as interpreted in the previous paragraph of this judgment. Whether or not the list is agreed I would ask the Judge to make the appropriate redactions, prior to the judgment being entered on the Register as soon as practicable thereafter.

The Claimant’s application for permission to appeal against the substantive order of Slade J will be determined on paper in the usual way. The Respondents should have 28 days from the handing down of this judgment in which to file a Respondents’ Notice and any application for permission to cross-appeal. The Appellant must pay the costs of this application, to be assessed in detail at the conclusion of the appeal to this court if not agreed.

Although this was only an application for permission to appeal it raised some points of general interest and I would accordingly give permission for this judgment to be cited in future cases.

I agree.