TYU v ILA Spa Ltd

JurisdictionUK Non-devolved
CourtEmployment Appeal Tribunal
Employment Appeal Tribunal TYU v ILA Spa Ltd EA–2019–983 2021 July 27; Sept 16 Heather Williams QC sitting as a deputy High Court judge

Industrial relations - Employment tribunals - Restricted reporting order - Judgment referring to suspicion of dishonesty and intimidating behaviour by third party who took no part in proceedings - Third party applying for redaction or anonymisation of name in judgment - Whether third party’s right to private life engaged - Whether principle of open justice outweighing right to privacy - Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8 - Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237)), Sch 1, r 50

The applicant was one of a number of family members employed in the respondent company. Two members of the family brought proceedings for unfair and wrongful dismissal, and the employment tribunal’s judgment referred to the applicant by name, although she was not a party or witness. The judgment stated that the applicant had been suspected of dishonesty, which the employer had referred to the police, and that employees had told an internal investigation they had been frightened by her intimidating behaviour. The applicant applied to an employment tribunal, pursuant to rule 50 of the Employment Tribunals Rules of Procedure 2013F1, asking for her name and role within the company to be redacted or anonymised from the judgment, claiming an infringement of her right to respect for private and family life, protected by article 8 of the Convention on Human Rights and Fundamental FreedomsF2, and relying on the damage and distress that would be caused if prospective employers carried out internet searches on her name and found the link to the judgment. An employment judge refused the application, concluding that the applicant’s article 8 rights were not engaged because information revealing her identity had been discussed in a public trial; alternatively, even if her article 8 rights were engaged, they did not outweigh rights protected by articles 6 and 10 of the Convention and the common law principle of open justice.

On appeal by the applicant—

Held, allowing the appeal, that, where a judgment was published containing adverse imputations about a named third party capable of adversely affecting their enjoyment of their private life, the engagement of article 8 of the Human Rights Convention would depend on the extent to which the judgment was potentially damaging to the third party’s reputation; that the fact that the information had been referred to in open court or was otherwise already in the public domain was something to take into account, but was not necessarily fatal to the engagement of article 8 and was not so in the present case, given that the appellant relied on future reputational damage, in particular from potential employers checking her via a search engine, and on the consequential impact and the distress that prospect was causing her; that, accordingly, the employment judge had erred in regarding the public hearing as determinative of the non-engagement of article 8, without carrying out a fact-sensitive assessment, and it was clear that article 8 was engaged; that, further, when setting out his alternative conclusion that the balance lay in favour of articles 10 and 6 and open justice, the judge did not determine the proportionality of either the interference with the applicant’s article 8 rights if her application was rejected or the interference with article 10 rights and open justice if the application was granted; and that, given the absence of fact-finding as to the alleged impact on the applicant and thus as to the strength of her article 8 rights, the balancing exercise would be remitted to the employment tribunal (post, paras 38, 5760, 64, 71, 75, 78, 79, 84).

Khuja v Times Newspapers Ltd [2019] AC 161, SC(E) and Del Campo v Spain (2018) 68 EHRR 27, ECtHR considered.

The following cases are referred to in the judgment:

A v British Broadcasting Corpn [2014] UKSC 25; [2015] AC 588; [2014] 2 WLR 1243; [2014] 2 All ER 1037, SC(Sc)

AAA v Associated Newspapers Ltd [2013] EWCA Civ 554, CA

Ameyaw v Pricewaterhousecoopers Services Ltd [2019] ICR 976, EAT

Bank Mellat v HM Treasury (No 2) [2014] UKSC 39; [2014] AC 700; [2013] 3 WLR 179; [2013] 4 All ER 533, SC(E)

Ben Adams Architects Ltd v Q UKEAT/42/19 (unreported) 6 June 2019, EAT

British Broadcasting Corpn v Roden [2015] ICR 985, EAT

CVB v MGN Ltd [2012] EWHC 1148 (QB); [2012] EMLR 29

Clift v Slough Borough Council [2010] EWCA Civ 1484; [2011] 1 WLR 1774; [2011] PTSR 990; [2011] 3 All ER 118, CA

Del Campo v Spain (Application No 25527/13) (2018) 68 EHRR 27, ECtHR

Fallows v News Group Newspapers Ltd [2016] ICR 801, EAT

Guardian News and Media Ltd, In re [2010] UKSC 1; [2010] 2 AC 697; [2010] 2 WLR 325; [2010] 2 All ER 799, SC(E)

Jafri v Lincoln College [2014] EWCA Civ 449; [2014] ICR 920; [2015] QB 781; [2014] 3 WLR 933; [2014] 3 All ER 709, CA

Khuja v Times Newspapers Ltd [2017] UKSC 49; [2019] AC 161; [2017] 3 WLR 351, SC(E)

PJS v News Group Newspapers Ltd [2016] UKSC 26; [2016] AC 1081; [2016] 2 WLR 1253; [2016] 4 All ER 554, SC(E)

R v Legal Aid Board, Ex p Kaim Todner [1999] QB 966; [1998] 3 WLR 925; [1998] 3 All ER 541, CA

R (C) v Secretary of State for Justice [2016] UKSC 2; [2016] 1 WLR 444; [2017] 1 All ER 513, SC(E)

R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland [2015] UKSC 9; [2015] AC 1065; [2015] 2 WLR 664; [2015] 2 All ER 727, SC(E)

R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47; [2018] 1 WLR 4079; [2019] 1 All ER 391, SC(E)

Richard v British Broadcasting Corpn [2018] EWHC 1837 (Ch); [2019] Ch 169; [2018] 3 WLR 1715; [2019] 2 All ER 105

S (A Child) (Identification: Restrictions on Publication), In re [2004] UKHL 47; [2005] 1 AC 593; [2004] 3 WLR 1129; [2004] 4 All ER 683, HL(E)

SW v United Kingdom (Application No 87/18) (2021) 73 EHRR 18, ECtHR

X v Y [2021] ICR 147, EAT

ZXC v Bloomberg LP [2020] EWCA Civ 611; [2021] QB 28; [2020] 3 WLR 838, CA

APPEAL from a decision of an employment judge sitting at Reading

By a decision on an application for an order under rule 50 of the Employment Tribunals Rules of Procedure 2013, by the applicant, TYU, against the respondent, ILA Spa Ltd, sent to the parties on 12 September 2019, the employment judge refused to order that the applicant’s name be redacted from or anonymised in an earlier judgment in proceedings against the respondent for unfair and wrongful dismissal by two members of the applicant’s family. The applicant appealed on the grounds that (1) the employment judge had wrongly concluded that the claimant’s rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms were not engaged; and (2) the employment judge had erred in conducting the balancing exercise and in assessing the proportionality of the competing rights involved.

By order dated 22 July 2021 an employment judge granted an application by the applicant for a temporary anonymity order.

The facts are stated in the judgment, post, paras 719.

Aidan Wills (instructed by AWO) for the applicant.

Tamar Burton (instructed by Bates Wells & Braithwaite London LLP) for the respondent.

The court took time for consideration.

16 September 2021. HEATHER WILLIAMS QC handed down the following judgment.

The appeal

1 This is an appeal against the refusal of the appellant’s application under rule 50 of the Employment Tribunals Rules of Procedure 2013 for an order that her name be redacted from, or anonymised in, an earlier judgment in proceedings brought against the respondent for unfair and wrongful dismissal by Sidra Rana and Mobina Saif. Both judgments were given by Employment Judge Vowles, sitting in an employment tribunal at Reading. The reserved judgment in relation to Ms Rana’s and Ms Saif’s claims was sent to the parties on 30 April 2018 (“the dismissal judgment”). The appellant’s rule 50 application was heard on 12 August 2019 and the reserved judgment, dated 6 September 2019, was sent to the parties on 12 September 2019 (“the rule 50 judgment”).

2 By an order sealed on 2 November 2020 following the rule 3(10) hearing, Judge Auerbach permitted the appeal to proceed on some of the grounds contained in the original notice of appeal. To avoid confusion with the original grounds, I will refer to these as “ground A” and “ground B”. Ground A arises from the employment judge’s conclusion that the appellant’s rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) were not engaged. Ground B from his alternative conclusion that, if the appellant’s article 8 rights were engaged, those rights did not outweigh countervailing rights protected by articles 6 and 10 ECHR and the common law principles of open justice.

3 More specifically, the appellant’s ground A (previously ground 2) contends:

“The judge wrongly concluded that the appellant’s rights under article 8 ECHR were not engaged on her application to be anonymised … He wrongly interpreted and applied Khuja v Times Newspapers Ltd [2019] AC 161 to hold that the appellant cannot make an article 8 complaint because the serious allegations contained in the … judgment were ventilated in open court. Article 8 ECHR protects a wider set of interests and its application does not depend solely on whether the information in question has been aired in court. An article 8 ECHR complaint can be maintained on the basis of the impact or intrusion that the publication of certain information has on their private and family life (Khuja at para 34(2)–(3)). Khuja was not about the publication by a court of serious allegations about someone who had no involvement in the proceedings. Article 10 ECHR and the open justice principle do [not] vitiate article 8 rights to procedural fairness.”

4 In its original form ground B (ground 3, as it then was) contained six sub-parts. Judge Auerbach accepted that three of these were arguable, as...

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4 cases
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