On 17 July 2016 another injunction hit the headlines, with The Sun on Sunday trumpeting that it had "won" a legal fight against Sir Elton John. The singer had withdrawn an appeal against a decision of the Employment Appeal Tribunal ("EAT"), with the result that the paper could report the fact that employment proceedings had been brought against him.
The case not only highlights interesting procedural issues around the powers of the Employment Tribunal after settlement, but exemplifies the reputational threats that can be posed when employment disputes involving high profile or high net worth individuals reach the courts. Rob Lewis looked at similar issues in his previous post.
Background: claim and interim RRO
Until mid-2015 John Fallows had been employed to provide hairdressing services to Sir Elton John. On his dismissal he brought claims alleging unfair dismissal and unlawful sex discrimination, including sexual misconduct, against the singer and two of his companies. The allegations were strenuously denied and the defendants made an application for a Reporting Restriction Order ("RRO") under which certain information, including the identity of the parties, could not be reported. The application was initially refused, but when the case came to the attention of News Group Newspapers (publishers of The Sun and Sun on Sunday) the Employment Judge made an interim RRO.
The parties subsequently settled the proceedings and the claim was withdrawn. NGN asserted that in light of the withdrawal of the claim, the RRO no longer had any effect and made an application for it to be revoked or discharged.
After the Employment Tribunal ruled that the ROO should be overturned, the singer appealed. At a subsequent hearing before the EAT, it was decided that: (1) the Employment Tribunal had jurisdiction to consider an RRO notwithstanding the fact that the proceedings had settled; (2) an RRO did not automatically expire on the withdrawal of the claim; and (3) in this instance the Employment Judge had made no error of law or principle in deciding that Sir Elton John's Article 8 Right to Privacy was outweighed by the principle of open justice and the newspaper's Article 10 Right to Freedom of Expression. There were therefore no grounds to overturn the decision of the Employment Tribunal that the RRO should be revoked.
Although it was originally indicated that Sir Elton John would pursue an appeal, it was then withdrawn, leaving the press free to report the fact of the proceedings, including the allegations involved.
The risks of restrictions
The EAT had been at pains to stress in its judgment that the public "is to be trusted to understand that unproven allegations made and then withdrawn, are no more than that". While such faith may be misplaced, could Sir Elton John and his co-defendants have dealt with the situation differently?
After the dust has settled, inevitably there will be something of an inquest and a wash up on how it might have been handled differently. It is unfair to criticise the action taken by Sir Elton John in circumstances where we do not know exactly what advice he received. In this case, however, the singer is a celebrity with an international reputation. Given the ease with which such information is shared on social media, it was always going to be difficult for him and his advisors to keep the facts of this case a secret.
On another occasion, for example, a claimant may wish to rely more heavily on his communications advisors so as to avoid his case becoming a cause celebre. That is not to say legal action is not appropriate in the correct circumstances. There will certainly be other cases where obtaining a RRO will still be a useful tool for individuals (and companies) wishing to protect their reputations. Also claimants may wish to take legal action where media outlets misreport the outcome of proceedings. The allegations made by Mr Fallows were unproven and it would very much be a case of publish and be damned.
As always, there's a great difference between being on the front page for one day as opposed for several days being on the front page of many papers, generated by gifting the papers the double whammy of it being a "story they tried to gag".