In EF and anor -v- AB and ors UKEAT/0525/13/DM, the EAT has held that an employment tribunal was wrong to refuse to extend a Restricted Reporting Order (RRO) following proceedings that involved lurid revelations and allegations of sexual misconduct made by an ex-employee against the CEO and his wife. The CEO and his wife had a right to privacy in relation to private sexual activity under Article 8 of the European Convention of Human Rights (the Convention). In the absence of a legitimate public interest in revealing their identities, their Article 8 rights had to prevail and the RRO should, therefore, have been extended. 

What is a Restricted Reporting Order?

Rule 50 of the Employment Rules 2013 provides that a tribunal may, at any stage of proceedings, 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 1996’.

Before making an RRO, a tribunal will have to give full weight to the principle of open justice and the right to freedom of expression.

An RRO can order that a hearing, which would otherwise be held in public, should be conducted in private or that the identities of persons involved in/referred to in the proceedings should not be made public.    

Publication in breach of an RRO is an offence which is punishable by a potentially unlimited fine. 

Background

AB was the managing director of a company, JK. The company was part of a group of which EF was CEO. In response to concerns raised about AB’s probity, AB made allegations of sexual misconduct in relation to EF and his wife, NP. As a result of AB’s threats to publish details of the allegations, EF obtained a High Court injunction against AB. AB subsequently resigned and brought claims of constructive unfair dismissal and sexual harassment, naming EF as one of the respondents. AB alleged that EF had encouraged him to attend sex parties with him and that EF and NP had sexually abused him for almost 13 years. 

Employment Tribunal

The tribunal made a temporary RRO preventing AB, EF, NP and other corporate respondents from being identified until the determination of liability and remedy. 

The tribunal concluded that AB’s motivation was not to bring a legitimate claim, but to seek revenge against EF and to obtain large sums of money by blackmail. It was held that AB’s claims were devoid of any merit and were dismissed in their entirety. 

However, the tribunal refused to make the RRO permanent and instead directed that it remain in force for 21 days. The tribunal justified its decision on the basis that there was a ‘general human interest in sex and money involving relatively rich people’ and on the fact that, based on AB’s conduct, those who worked under AB must have been miserable and they had right to know why. The tribunal considered that this had a bearing on EF as the group CEO. They felt that it would be impossible to identify EF without identifying NP as well; her right to anonymity hung with his. The fact that press coverage of the case had been widely discussed within the group also weighed against the application for a permanent RRO.

EF and NP appealed to the EAT.

Employment Appeals Tribunal

The EAT clarified that tribunals’ power to extend RROs beyond the end of proceedings derives from the ECHR. The Convention right at stake here was the right to privacy in respect of sexual conduct. It was noted how all of the alleged sexual misconduct took place in private, between adults, and in circumstances in which there was a reasonable expectation of privacy. People are entitled to a high degree of privacy in relation to their sexual activities. 

It was held that the tribunal had erred in concluding that the ‘public interest’ in the case outweighed EF’s privacy; the justification based on employees’ rights to know was tenuous. The tribunal was wrong not to consider NP’s rights separately to her husband and the fact that NP had a ten year old child. The tribunal should also have considered that, as AB’s motivation was revenge and blackmail, refusing to extend the RRO was giving him what he wanted.   

The EAT considered the delicate balance between rights to privacy and rights to freedom to receive and impart information and to the public interest in open justice. The most powerful countervailing factor to EF and NP’s rights was the interest in open justice. However, their undoubted right to privacy in relation to private sexual activity, and the absence of any legitimate public interest in revealing their identities, meant that their rights to privacy should prevail. 

The EAT extended the RRO permanently.

Comment

Reputational risk is a significant consideration of employers when facing allegations from employees. The availability of RROs may provide some comfort to employers who are concerned about proceeding with employment tribunal proceedings for this reason. However, compelling reasons will be required in order for the presumption in favour of open justice to be overruled, particularly if the RRO is not temporary.  

In this case, the details of the claim were more ‘of interest to the public’ than ‘of public interest’.  Employers with public functions wishing to obtain an RRO may have a harder task persuading a tribunal that details of the proceedings were not in the public interest. There is also a danger that an RRO may be perceived as ‘gagging’ so caution is advised when considering an application.  

Employers should be aware that any party with a legitimate interest, including the press, can apply for an RRO to be revoked or discharged. The press have successfully overturned RROs in the past on the basis that their right to freedom of expression was paramount.