In an article first published by Thomson Reuters, Managing Associate, Annabel Mackay, explores the different ways in which respondents to Tribunal proceedings can minimise publicity.
Respondents should be aware from the outset that the final hearing will be public. Witness statements will be available for members of the public to read at the tribunal. While the public will not have ready access to the bundle, those documents become part of the public record once they are read out at the hearing. A member of the press might try to obtain copies of any documents which form part of the tribunal's decision-making.
Preliminary hearings are also heard in public where a strike out application is being considered or a preliminary issue is being determined. A preliminary issue is a substantive issue which may determine liability (such as a jurisdictional challenge). A respondent needs to consider whether an application for a preliminary hearing will achieve the desired result or just accelerate press coverage.
Restricted reporting orders
Are there any procedural steps that respondents can take to minimise publicity? At the upper end of the scale are restricted reporting orders. The original legislation limited their scope to cases involving sexual misconduct, disability and national security.
Under new rules, an Employment Tribunal may make an order where (i) this is required in the interests of justice; (ii) in order to protect Convention rights; and (iii) as required under section 10A of the Employment Tribunals Act 1996 (which includes protection of confidential material).
The tribunal may also use its general case management powers; a case under the old rules granted permanent anonymity to protect the privacy of vulnerable students.
When the legislation was amended, the media expressed concern that such orders would be granted more readily. The government responded that the changes codified existing case law whereby Employment Tribunals must have due regard to Convention rights, balancing the qualified right to respect for privacy and family life (Article 8) against the qualified right to freedom of expression (Article 10).
Article 6 (the right to a fair, impartial hearing in public) is also engaged. This principle is captured in rule 50(2) of the Tribunal Rules of Procedure 2013 which states that tribunals must give full weight to the principle of open justice and freedom of expression.
The principle of open justice is of paramount importance. The Supreme Court recently stated: "It is a general principle of our constitutional law that justice is administered by the courts in public and is therefore open to public scrutiny."
The Practice Guidance on Interim Non-Disclosure Orders notes that derogations can: "only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice." An application must be supported by clear and cogent evidence.
Where derogations are justified, they must go no further than is required. Under Rule 50(3) the tribunal has various options available. It may conduct the hearing wholly or mainly in private or it may restrict identification of witnesses, parties or other persons. The former involves the greatest degree of interference with open justice and is the most challenging to obtain.
Recent case law
Two recent cases illustrate the approach. In BBC v Roden, the Employment Appeal Tribunal set aside a permanent anonymity order in a case involving unproven allegations of sexual misconduct. Roden's fixed-term contract was not renewed after concerns about his conduct towards young adults were raised with the BBC. Other unproven allegations of sexual misconduct were brought into evidence at the hearing.
The tribunal judge had granted a restricted reporting order because Roden had not had an opportunity to contest allegations of sexual assault. He noted that the public reaction to sexual offences "can be particularly virulent." The Employment Appeal Tribunal upheld the BBC's appeal and noted that the principle of open justice was fundamental and presupposed that the public could distinguish between proven and unproven allegations.
There should have been an assessment of the public interest in publication and a focus on the comparative importance of the rights being claimed. The weight of Roden's Article 8 rights was low in circumstances where he had made material false statements to the BBC. The countervailing reasons for publication (disclosure to regulatory bodies) had not been given due weight.
In another case (EF v AB) involving sexual harassment allegations, a permanent restricted reporting order was granted to protect an individual respondent and a third party. The claim was brought as an act of revenge. The claimant had circulated a sexual photograph of the individual respondent's wife, threatening to take matters to "the next level" via the media.
There was no public interest in identifying either individual; public prurience was not sufficient justification for interference with privacy rights. Failure to grant the permanent restricted reporting order also meant that a child would have his mother identified as having participated in sexual activity. The claimant's motivation was also relevant to the decision to grant the order.
It is also important to acknowledge that a restricted reporting order may only be used to protect an individual. In a case brought under the old rules (Leicester University v A), the Employment Appeal Tribunal found that it was: "not the intention of Parliament to provide anonymity to corporate respondents who might be vicariously liable for acts of sexual misconduct in order to protect their commercial reputation."
The public reporting of tribunal proceedings was a means of emphasising employers' responsibilities. The Employment Appeal Tribunal concluded: "It was not Parliament's intention...to extend the restriction to protect the reputation of corporate respondents...although that may lead to disparity between the parties to the proceedings as to the publicity that can be given to each of them." A restricted reporting order can be drafted to prevent disclosure of matters that would identify individuals (such as the employer). It will not however be granted to protect an employer's brand.
What other solutions are available? Section 10A of the Employment Tribunals Act 1996 permits a tribunal to sit in private to hear evidence that could not be disclosed without breaching a legal obligation or which has been given or received in confidence. A pre-hearing review (now a preliminary hearing) was heard in private to determine the admissibility of without prejudice communications, for example.
This power is rarely used in respect of confidential information, however. It is more common for the parties to redact confidential documents or to arrive at other solutions to permit the hearing to take place in public. In bonus disputes, for example, employees may be identified by a confidential key. The parties may also refer to a closed bundle.
Where does that leave respondents?
The procedural options available to respondents who wish to restrict publicity are limited. Restricted reporting orders will only be made where absolutely necessary to protect individuals rather than a corporate brand. Where confidential documents are involved, there is scope to apply for part of the hearing to take place in private but the parties tend to find alternative solutions which interfere to a lesser extent with open justice. With limited procedural avenues available, respondents should engage with internal or external communications specialists at an early stage rather than as the hearing approaches.