Ajao v Commerzbank AG and Others
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2024] EAT 11 |
| Year | 2024 |
| Court | Employment Appeal Tribunal |
2024 Jan 23; Feb 12
Industrial relations - Employment tribunals - Anonymity order - Claimant making allegations of sexual assault and harassment in employment tribunal claim - Tribunal orders protecting claimant’s anonymity indefinitely - Allegations found to be false - Whether material change of circumstances justifying reconsideration of orders - Whether claimant entitled by statute to lifelong anonymity - Whether orders to be revoked -
The claimant brought claims of discrimination in the employment tribunal against the respondents, his former employer and five of its employees, which included allegations that he had been sexually assaulted and sexually harassed by one of those employees. At a preliminary hearing, the employment judge made indefinite anonymity and reporting restriction orders, pursuant to rule 50 of the Employment Tribunals Rules of ProcedureF1, preventing the disclosure of the claimant’s identity, on the understanding that, as a victim of an alleged sexual offence, section 1(1) of the Sexual Offences (Amendment) Act 1992F2 provided the claimant with lifelong anonymity. At the hearing on liability, the employment tribunal concluded that the claimant’s account of events was false and all his claims were dismissed. The tribunal decided that, given the claimant’s false evidence, there had been a material change of circumstances justifying revisiting the anonymity and reporting restrictions orders under rule 29 of the Rules, and it granted an application by the respondents to revoke the orders, subject to a stay pending an appeal.
On the claimant’s appeal against the revocation of the anonymity orders—
Held, dismissing the appeal, that section 1(1) of the Sexual Offences (Amendment) Act 1992 provided lifelong anonymity protection to an alleged victim where “an allegation has been made” that a sexual offence to which the Act applied had been committed against them; that the words “an allegation has been made” referred to the making of an allegation in circumstances which raised, or were intended to raise, a real possibility that a criminal charge would follow, but did not refer to the making of an allegation in civil, family or tribunal proceedings of conduct which, while if proved beyond reasonable doubt in a criminal court would lead to conviction of an offence falling within the Act, need only be proved on the balance of probabilities; that it followed that “allegation” in section 1(1) referred to a formal allegation made in the context of potential criminal proceedings, where a criminal charge could be brought; that, in the present case, there was no suggestion that the clamant had ever made a formal allegation, in the context of the criminal law, of a sexual offence committed against him, and, accordingly, he was not entitled to the protection of the 1992 Act; and that the tribunal was plainly right to decide that there had been a material change of circumstances, once it had found that the claimant’s account given in his evidence was in large part false, and, in particular, that his complaints of sexual assault and sexual harassment were fabricated, and to revoke the anonymity and restricted reporting orders (post, paras 70, 73, 75, 77–79, 85, 87, 112).
Per curiam. In other cases, where the requirement in section 1(1) of the Sexual Offences (Amendment) Act 1992 is satisfied on the facts—a serious complaint of a sexual offence will have been made, usually to police—a privacy order would be made under rule 50 of the Employment Tribunals Rules of Procedure, since a tribunal would want to avoid any clash with the criminal law. A lacuna appears to be that the tribunal has no power corresponding to that of a Crown Court judge or justice of the peace to remove the protection of the 1992 Act, where a false complaint has been made to police and its falsity is exposed in the tribunal proceedings (post, paras 79, 82–83).
The following cases are referred to in the judgment:
A v Choice Support (formerly MCCH Ltd)[
A v X[
Attorney General v Leveller Magazine Ltd[
Birmingham City Council v Riaz
Fallows v News Group Newspapers Ltd[
Guardian News and Media Ltd, In re
Jilley v Birmingham and Solihull Mental Health NHS Trust UKEAT/584/06 (unreported) 21 November 2007,
Khuja v Times Newspapers Ltd
Lu v Solicitors Regulation Authority
Millicom Services UK Ltd v Clifford
National Westminster Bank plc v Lucas
O’Riordan v Director of Public Prosecutions
Officer L, In re
Plymouth City Council v ABC
Press Association, In re
R v Beale
S (A Child) (Identification: Restrictions on Publication), In re
Scott v Scott[
Serco Ltd v Wells[
The following additional cases were cited in argument:
British Broadcasting Corpn v Roden[
F v G[
Pereda v Madrid Movilidad SA
Plumb v Duncan Print Group Ltd[
Secretary of State for the Home Department v Parr[
TYU v ILA Spa Ltd[
Vaughan v Lewisham London Borough Council[
X v Y[
The following additional cases, although not cited, were referred to in the skeleton arguments:
AAA v Associated Newspapers Ltd
Chief Constable of West Yorkshire Police v A[
Jafri v Lincoln College
R v Musharraf
R (R) v Chief Constable of Greater Manchester Police
Sinclair Roche and Temperley v Heard[
APPEAL from an employment tribunal sitting at London Central
The claimant, Damilare Ajao, brought claims of discrimination against the respondents, Commerzbank AG, Lars Vogelmann, Hope Jackson, Gary Booth, Yogita Mehta and Ms Q. On 9 September 2021 Employment Judge Brown made an anonymity order until promulgation of judgment or further order in respect of Ms Q. The judge also made an anonymity and a restricted reporting order of indefinite duration in respect of the claimant.
In a decision sent to the parties on 14 February 2022, the employment tribunal (Employment Judge Snelson, Ms C Ihnatowicz and Mr D Clay) dismissed all the claims brought by the claimant. The respondents then applied to lift the anonymity and restricted reporting orders in respect of the claimant and to extend the equivalent orders indefinitely in the case of Ms Q. The tribunal found that there had been a material change of circumstances in relation to the claimant, in that the serious allegations on which he had based his application for anonymity had been found to be false, and it revoked the orders in respect of the claimant, subject to a temporary stay to allow for an appeal.
The claimant appealed the decision to revoke the privacy orders made in his favour and sought to restore the orders on the ground that the tribunal had wrongly withdrawn the protection of the Sexual Offences (Amendment) Act 1992, misused its powers under rule 50 of the Employment Tribunals Rules of Procedure 2013 and wrongly found that there had been a material change of circumstances.
The facts are stated in the judgment, post, paras 4–24.
Ross Beaton (instructed directly through
Claire McCann (instructed by
The appeal tribunal took time for consideration.
12 February 2024. KERR J handed down the following judgment.
Introduction1 This appeal proceeds on three miscellaneous grounds following unsuccessful claims by the appellant, the claimant below, determined in the London Central Employment Tribunal in 2021 and 2022. The claims were mainly for various kinds of discrimination. The tribunal disbelieved the claimant’s evidence and dismissed all the claims. The first point of appeal challenges the decision to revoke two orders protecting the claimant’s identity. The second point is whether the tribunal was wrong to dismiss his claim for outstanding holiday pay. The third is whether the tribunal was justified in ordering the claimant to pay a contribution of £20,000 towards the respondents’ costs.
2 Numerous procedural steps were taken, mainly by the claimant, in the weeks and months leading up to the hearing of this appeal. I do not yet need to go into the details save to say that I reject the claimant’s application (not supported by Mr Beaton) to rely on a statement from a Mr Olayinka Taiwo about holiday pay. That evidence could have been deployed before the tribunal below and does not affect any of the existing grounds of appeal; it would require permission to raise a new ground in support of the holiday pay claim, which would be wholly inappropriate at such a late stage.
3 The reserved decision dismissing all the claims came after a hearing from 19–27 October 2021 before Employment Judge Snelson, sitting with Ms C Ihnatowicz and Mr D Clay, sent to the parties on 14 February 2022 (with minor...
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