F v G
| Jurisdiction | UK Non-devolved |
| Court | Employment Appeal Tribunal |
| Year | 2012 |
| Date | 2012 |
Industrial relations - Employment tribunals - Procedure - Restricted reporting order - Employee’s tribunal claim concerning matters of a sexual nature involving college students and staff - Whether right to private life of students and staff engaged - Whether permanent anonymity order justified -
The claimant was a care assistant at a further education college with residential facilities for disabled students. Her duties included washing the students, but when she was asked to wash a male student shortly after assisted masturbation had taken place she resigned. She brought claims against the college in an employment tribunal complaining of sex discrimination, unlawful harassment and unfair dismissal. An employment judge acceded to the college’s request for a restricted reporting order under rule 50 of the Employment Tribunals Rules of Procedure 2004F1 prohibiting the identification of the students of the college and subsequently made a permanent anonymity order under rule 49 directing that any identifying matters, including the names of the college, the claimant, the students and the staff, should be omitted from any record of the proceedings, since the infringement of the right of the students, and of staff who assisted them, under article 8 of the European Convention on Human RightsF2 to respect for a private and family life outweighed the interests of the freedom of the press.
On an appeal by the claimant, who opposed the making of the order in particular in relation to herself and the college—
Held, dismissing the appeal, that the employment judge had purported to make the order for permanent anonymity under rule 49 of the Employment Tribunals Rules of Procedure 2004, whereas that rule applied only in cases involving allegations of the commission of a sexual offence and there was nothing in the claimant’s case that even implied an allegation of a sexual offence; that, however, the judge did have the power to make an anonymity order to the extent necessary to protect the article 8 rights of the parties, or of any other person involved in the events in question, and, if the publication of information about them would interfere with their article 8 rights sufficient to justify an interference with the principle of open justice, that included both the students and the staff; that there was no public interest that could justify identifying the individual student and the member of staff who had assisted him; that there was a real risk of an unredacted judgment being reported in the press, and the impact on the students, specifically the group of male disabled students, and the staff, would engage their article 8 rights; and that, notwithstanding the weight to be attached to both public and private interest in full publication of the judgment, on balance permanent anonymisation was justified to protect a group of highly vulnerable individuals, the risk to whose article 8 rights had arisen in litigation in which they themselves had no interest (post, paras 32–35, 37, 39, 40, 47–50, 59).
Per curiam. (1) In a case where anonymisation or restricted reporting orders are sought in order to protect article 8 rights, the tribunal’s powers do not have to be derived from rules 49 and 50 of the Employment Tribunals Rules of Procedure 2004. On the contrary, it has wide powers to take appropriate steps unconstrained by their specific terms (post, para 22). As a preliminary, consideration needs to be given to whether rule 49 applies. If it does, anonymisation is mandatory (post, para 24(a)).
(2) Except in cases where rule 49 applies in accordance with its terms, the question whether the record of the tribunal needs to be anonymised need not necessarily be decided once and for all at the start of the proceedings. There is no reason why, in an appropriate case, a judge may not direct interim anonymisation, with a final decision being taken only at the point when the judgment is delivered and when the tribunal will be best placed to assess all relevant factors (post, para 24(e)).
(3) Anonymisation of the record is on its face no more than that: it simply determines what appears in the public judgment. It does not as such prevent the parties or others from publishing information derived from the hearing even if that might enable third parties to get behind the cloak of anonymity in the judgment itself. I heard no argument about whether such conduct might nevertheless on some basis be unlawful; but it seems to me desirable that if such publication is to be restrained beyond the life of the proceedings it should be by an explicit order, in effect an extended restricted reporting order, so that everyone knows where they stand (post, para 25).
The following cases are referred to in the judgment:
A v B [
B and C v A [
Gray v UVW
Guardian News and Media Ltd (In re)
Hutcheson v News Group Newspapers Ltd
Scott v Scott [
Tradition Securities and Futures SA v Times Newspapers Ltd [
Vatish v Crown Prosecution Service
X v Comr of Police of the Metropolis [
No additional cases were cited in argument.
INTERLOCUTORY APPEAL from an employment judge sitting at Birmingham
On 25 May 2010 an employment judge made permanent a temporary restricted reporting order made under rule 50 of the Employment Tribunals Rules of Procedure 2004 prohibiting the reporting of anything likely to lead to the identification of the students of the respondent college. At a pre-hearing review the college was granted a permanent anonymity order under rule 49 in respect of matters identifying the college, the claimant and staff and students. The claimant appealed arguing that the judge had no power to make the order under rule 49 as no sexual offence had been committed and that she had failed to show that the publication of the judgment without anonymisation would interfere with the rights of any affected person under article 8 of the European Convention on Human Rights sufficiently to outweigh the principle of open justice.
The facts are stated in the judgment.
Christopher Law, representative, for the claimant.
Gary Morton (instructed by
The court took time for consideration.
21 September 2011. The following judgment was handed down.
UNDERHILL J (PRESIDENT)
Introduction1 This is an appeal against the decision of Employment Judge Dean to make what she described as a permanent anonymity order, purportedly pursuant to rule 49 of the Employment Tribunals Rules of Procedure 2004, in relation to proceedings then pending before the Birmingham employment tribunal.
2 Both before the tribunal and before me the claimant was represented by a friend, Mr Christopher Law, and the respondent college was represented by Mr Gary Morton of counsel. When the appeal was first lodged I considered whether it was necessary to seek the assistance of an amicus but decided against it. In hindsight, such assistance would indeed have been useful; but the need to ponder the difficult issues to which the appeal gives rise must excuse the time that it has taken me to promulgate this judgment.
The claims and the procedural history3 The respondent is a college of further education with special facilities for disabled students. Some of the students are severely physically disabled, and of those some 120—aged between 16 and 25—are resident at the college. There was some uncertainty at the hearing before me as to its formal status. I asked for further information on this aspect to be supplied following the hearing. A note from the college’s solicitors (to whose contents Mr Law made no objection) tells me that its governance is in the hands of a board of governors operating under an “Instrument and Articles of Government” in the form prescribed by the Further and Higher Education Act 1992; and that the majority of its funding comes from the Department of Education via the Young People’s Learning Agency.
4 The claimant worked at the college as a “care enabler” from 2002–2004 and again from 2005 until her resignation in 2009. Her duties included the washing of students, both male and female, who were unable to wash themselves, including washing their private parts. The college employs some 140 care staff.
5 In 2008, following a recommendation from the Commission for Social Care Inspection, the college introduced a formal relationships and sexuality policy relating to its students (“the policy”). (It is said by Mr Law that the policy was implemented in advance of its formal approval by the governors, but nothing turns on that for present purposes.) One of the elements of the policy was a recognition that disabled male students
6 The claimant’s core complaint is that she was on two occasions asked...
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