A & B v X & Y and Times Newspapers Ltd

A and B  brought Employment Tribunal proceedings alleging sexual misconduct, including the commission of sexual offences, by Y.  X and Y (X being a company associated with Y) obtained a restricted reporting order (‘RRO’)  for the ET proceedings but this was overturned on appeal by the EAT (Times Newspapers Ltd  – ‘TNL’ – intervening) because of an error of law.  The issue was remitted to the ET.  The appeal was heard in public but the EAT’s  judgment was anonymised and Soole J made orders continuing the RRO in the ET and protecting the identity of the parties to the appeal (other than TNL) until further order.

In September 2018, before the ET revisited the question of an RRO, A and B withdrew their claims and the ET proceedings were dismissed.  X and Y did not seek to continue the RRO or any other form of reporting restriction in the ET, their reasoning being that the allegations against Y had never been aired at a public hearing in the ET.  A “judgment on withdrawal” which named the parties and recited that the claim had been withdrawn was published on the ET’s website for several months until TNL obtained an order in November 2018 that it be replaced with an anonymised version.  Traces of the original judgment on withdrawal naming the parties remained online for some time thereafter.

TNL applied to the EAT for the order restricting reporting of the EAT proceedings to be discharged, contending that there was no jurisdiction for the EAT to make such an order having effect after the EAT proceedings themselves have come to an end and that, in any event, such an order was unjustified because Y’s rights under ECHR Article 8 were outweighed by the open justice principle and ECHR Article 10.

1.  Whether the EAT has jurisdiction to restrict the identification of parties after the conclusion of proceedings before it;

2.  if so, whether such an order was justified in this case, balancing the ECHR Article 8 rights of Y against the open justice principle and the ECHR Article 10 rights of the media and the public.

1.  Jurisdiction

The EAT has jurisdiction to make such an order.  It is derived from the Employment Tribunals Act 1996, s.30(3) (“… the Appeal Tribunal has power to regulate its own procedure.”) read to give effect to the parties’ Convention rights as required by the Human Rights Act 1998.

2.  Balancing exercise

TNL argued that it was important to attach Y’s name to reports of the proceedings in order to attract the attention of a typical reader, and that there was a particular current interest in claims of sexual harassment against the wealthy and powerful and the associated ability of such individuals to obtain protection of their identity through their use of settlements involving non-disclosure agreements or court and tribunal procedures.

Soole J held, however, that the balance favoured continued anonymity.  EAT Rule 23(2) prohibits the EAT itself from identifying the alleged perpetrator of a sexual offence in its own judgments and, while not determinative, this is a strong factor in favour of restricting the reporting of their identity.  Y’s Article 8 rights merited substantial weight given that: he did not initiate the claims; the claims had been withdrawn and dismissed; there had been no reference in the proceedings to a settlement; there is reason to fear some people reading about the case would not distinguish between allegation and proof (Khuja v Times Newspapers Ltd [2019] AC 161 followed in preference to Fallows v News Group Newspapers Ltd [2016] ICR 801); Y’s unchallenged evidence demonstrated real fears and distress, enhanced by his advanced age and ill-health, of the personal consequences if the nature of the allegations were to be reported.  There was also a non-fanciful risk that reports identifying Y might also have the effect of identifying A and B, given the earlier publication of the judgment on dismissal, thus compromising the protection provided to them under the Sexual Offences (Amendment) Act 1992.

This case highlights some interesting and anomalous distinctions between the rules governing reporting of Employment Tribunal proceedings and those governing reporting of proceedings in the EAT.  In the Employment Tribunal, whose rules were revised in 2013 to reflect current human rights and open justice principles, there is an express discretionary power (r.50) to prohibit the identification of parties in perpetuity.  The EAT rules (the relevant parts of which have not been revised since 2004) do not contain any equivalent provision and so the EAT in this case had to resort to its obligations under the HRA 1998 to locate a power to make such an order.  EAT Rule 23(2) is also anomalous, having no equivalent in the current ET rules.  It imposes an absolute prohibition on the EAT including identifying details of a “person affected by” an allegation of a sexual offence  (i.e. including the alleged perpetrator) in its own judgments or other publicly available documents in certain classes of case, even if  it decides not to restrict the press from reporting such details.