Full case report
A v B (EAT)
Court Employment Appeal Tribunal
Judge Underhill J, Edwards, Mallender
Date of Judgment 5 Mar 2010
Anonymity – Jurisdiction to anonymise – Employment Appeal Tribunal – Freedom of expression – Restricted reporting orders
A was dismissed by the Respondent as a result of a formal disclosure from the Child Abuse Investigation Command of the Metropolitan Police (“CAIC”) alleging that he had been involved in paedophile activity in Cambodia and was believed to represent a risk to children. He had been acquitted by the Cambodian courts and was not facing prosecution in this country. He had always denied the allegations. In the proceedings before the Tribunal the Respondent did not seek to establish that the allegations against A were true but only that it was reasonable for it to dismiss him on the basis of them. The Tribunal made a permanent anonymity order under r 49 of the Employment Tribunal Rules of Procedure despite the fact that the provision did not apply to cases where the Tribunal is considering an appeal against the substantive order of an employment tribunal, a pre-condition to the exercise of the jurisdiction under s 31 of the Employment Tribunals Act 1996.
Whether the Employment Tribunal had the power to make a permanent anonymity order affecting its own record because of the effect of s.31.
On the face of it the Tribunal had no power to make a permanent anonymity order. The question is whether loss of anonymity would breach A’s Convention rights. If so, it is the duty of the Tribunal to interpret its power so as to protect anonymity. When considering A’s rights under Art 8 balanced against the rights protected by Art 10 the balance came down in favour of preserving X’s anonymity. If it became public knowledge that the police believed A was an active paedophile, that would have a devastating effect on his Art 8 rights. Because of the outcome of the proceedings and the fact there were no other proceedings against A there was no public interest to outweigh those rights. Accordingly, the Tribunal, in the exercise of its powers to regulate its procedure under the 1996 Act, should anonymise its judgment.
This case is a useful illustration of a Tribunal adapting and modifying its rules of procedure to accomodate and safeguard Convention rights. While the literal and strict reading of the present rules did not favour the anonymity order, the Tribunal exercised its own powers “to regulate its own procedure” to ensure a breach of A’s article 8 rights did not occur.
A in person; Allen & Overy for the Respondent
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