Taking Industrial Tribunal proceedings can be a stressful and emotional experience; particularly for a claimant once aware that any resultant Tribunal judgment will be public. However, the Tribunal Rules do allow for restrictions on public disclosure of proceedings, or aspects thereof, in certain circumstances.
A recent EAT authority of A v Burke & Hare considered whether an employment Tribunal should have made an anonymity order to protect the Claimant’s identity in the pursuit of a holiday pay claim.
“A” was a student in Edinburgh between 2016 and 2019. Whilst studying, “A” worked as a stripper in Burke & Hare’s strip and lap dancing bar. “A” was required to flirt with customers with an aim of having them pay for a private dance in which “A” would strip naked and imitate sexual acts. “A” claimed that there was a risk of physical assault whilst working as a stripper and she had, at times, been called derogatory names.
After completing her studies, “A” returned to London and worked as a waitress. She hoped to ultimately secure employment in the IT or Finance sector.
“A” instigated Tribunal proceedings for holiday pay against Burke & Hare. She claimed she was a ‘worker’ within the meaning of the Working Time legislation and thus entitled to holiday pay. Burke & Hare contested the claim, arguing that “A” was a self-employed stripper. A preliminary issue was raised as to whether “A” ought to be granted an anonymity order to protect her identity. “A” was concerned that any judgment published confirming that she had worked as a stripper may risk stigmatisation, sexual violence, and an adverse effect to her future career prospects.
At first instance, the Tribunal refused “A’s” application. The Tribunal took a view that “A” ought to have been cognisant of the fact that previously working as a stripper could harm her career prospects; and the consequences of any public Tribunal judgment would be down to “A’s” life choices. Further, the Tribunal found there was no evidence that “A” had ever suffered from sexual violence, albeit accepting that customers had threatened to follow her home; and it rejected “A’s” assertion that her mental health would suffer if it became known that she worked as a stripper when studying.
“A” appealed to the EAT – claiming that the Tribunal failed to consider the damage any public judgment would cause to her “honour and reputation”. The determination of the EAT appeal depended on the balance between “A’s” ECHR right to privacy and the principle of open justice.
The EAT accepted that the Tribunal had considered and addressed “A’s” assertion that strippers and other sex industry workers are stigmatised by society – but stigmatisation in the absence of more would be insufficient to justify derogation from open justice. The EAT held that the Tribunal’s findings were justified. In any case, in the absence of clear and cogent evidence of harm which arise from a public judgment, the default position remains. The EAT also reflected that a small fraction of numerous judgments generate publicity; no evidence had been adduced in the extant case that an internet search of “A’s” name would produce a “hit”; and no evidence was produced in establishing “A’s” assertion of harm to her career prospects.
“A” was, however, granted anonymity in respect of the EAT’s judgment, as she intended to drop her case if her anonymity application was rejected, and a refusal with regards that aspect of the case would result in “A” losing her privacy merely due to seeking anonymity rather than remedy arising from her alleged holiday pay claim. Considering this judgment, it remains to be seen how the balance between open justice and the protection of an individual’s ECHR rights will be determined in the future; particularly if claimants contend that they would be dissuaded from pursuing litigation if their name/identity was made public by any subsequent judgment.
Toni Fitzgerald-Gunn is a Partner in the Employment Department and can be contacted via email at [email protected] or 028 9043 4015.
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