Court of Appeal rejects Employee's request for Anonymity

02 October 2014

Can a party request anonymity in an Industrial tribunal ?

In the case of Julius Ember Anakaa –v- Firstsource Solution Ltd NICA 2014 Worthingtons solicitors successfully defended all claims raised against the Employer, which included racial discrimination and failure to provide itemised payslips, the Claimant having appealed the initial Decision of the Industrial Tribunal handed down in April 2013.

The Claimant appealed this Decision to the Court of Appeal alleging, amongst other things, that the Industrial Tribunal’s Decision not to grant him permanent anonymity was wrong in the circumstances of his case. Within the Court of Appeal case, the claimant sought a Restricted Reporting Order, primarily on the basis that he had a teenage daughter who shares his surname, which is unusual in the Northern Ireland jurisdiction.

A Restricted Reporting Order prohibits the press from reporting on any facts and issues arising during the duration of the case, until the Industrial Tribunal has furnished its Decision. Tribunals in Northern Ireland are given limited powers in relation to restricting the reporting of their proceedings in comparison to their counterparts in England and Wales. There are two circumstances within the current powers of Industrial Tribunals in Northern Ireland that provides authority to prohibit the press from making any disclosures to the public during a case.

The first is concerned with allegations of sexual misconduct made by a party in any proceedings. This did not apply in this case. The claimant sought protection as he was bringing a complaint under the Disability Discrimination (Northern Ireland) Order 1995, in which the claimant contended that evidence of a personal nature is likely to be heard by the Tribunal or a chairman hearing the case. The Tribunal hearing this case granted an interim reporting order without objection from the Respondent for the duration of the hearing, but only until this Decision was issued in April 2013, whereupon there would be no restrictions on the press reporting on the Decision and facts therein.

The Court of Appeal handed down useful clarification in relation to the legal test required for a claimant in such circumstances seeking protection via a Restricting Reporting Order. The Court of Appeal believed that the Tribunal hearing this case in the first instance went too far in the claimant’s favour by ordering a Restricting Reporting Order, for two reasons.

The first is the “evidence of a personal nature” in the present case was not particularly sensitive or embarrassing.

Secondly, the Order was made because the Tribunal believed that in hearing the case, it could not rule out such embarrassment to the claimant if the proceedings were to be the subject of publicity/media.The Court of Appeal held that this was not the test set out within the relevant rules of the Industrial Tribunal; rather the test is that “evidence of a personal nature is likely to be heard…”

The Court of Appeal went on to say that it should have been the case that the Industrial Tribunal in the first instance should not have ordered a Restricted Reporting Order, as the claimant in these circumstances failed to meet this legal test.

The Court of Appeal went on to address a further legal issue which remains ambiguous for employment law practitioners in Northern Ireland.The claimant in his Industrial Tribunal hearing not only sought that the press be prohibited from reporting matters during his hearing, but that reporting restrictions should continue permanently after the Decision was furnished by the Industrial Tribunal.This is known as a permanent anonymity order/registered deletion order. Such orders are not provided for at all in the 2005 Regulations but emerge from the development of the duties of Tribunals as public authorities within the meaning of section 6 of the Human Rights Act 1998. Among these duties is to protect the Article 8 European Court of Human Rights right to privacy of the parties and those associated with the case. In the present case, the Tribunal analysed the relevant case law including cases from Employment Appeals Tribunals in Britain, and the High Court in this jurisdiction, and concluded that if it was appropriate to do so in the circumstances of a particular case, it could make such orders in order to protect a party or a person other than a party – in this case the Claimant’s teenage daughter. Significantly the Court of Appeal in hearing this present case affirmed the Decision of the Employment Tribunals in England and specifically the case of F –V- G (2012) ICR246.

The Court of Appeal in affirming this Decision noted the high threshold for any claimant in circumstances where they sought to obtain a permanent anonymity order after the Decision had been furnished by an Industrial Tribunal.The Court of Appeal in this present case determined and agreed entirely with the Tribunal’s conclusion that the evidence in the claimant’s case did not justify such an excessive order being made.The Court of Appeal went on to say that the interest of the public in knowing what is alleged in Tribunals and what Decisions Tribunals reach is a substantial one.

The Court of Appeal also went on to affirm a Decision of the High Court in the Northern Ireland jurisdiction in the case RE: A POLICE OFFICER’S APPLICATION FOR LEAVE FOR APPLY FOR JUDICIAL REVIEW (2012) NIQB3, which is proposition for authority that the courts in considering whether there should be restrictions in the disclosure of court hearings, for example hearings in camera, hearing in chambers, protection of the identities of litigants and witnesses, the court must adopt as it's starting point, the principle of open justice and, having done so, then explore rigorously the question if sufficient justification for any encroachment on this principle has been demonstrated and, if so, in what manner and to what extent.

It was determined that the claimant did not demonstrate the requisite justification to encroach the principle of open justice in the circumstances of his case.The claimant’s case did not require any anonymisation or restriction on the judgement permanently, either to protect his daughter or to protect any other person.

Niall McMullan is an Associate Partner in the Employment Law department of Worthingtons solicitors.

 

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