Anonymity Orders in the Employment Tribunal – by Simon Anderson

Simon Anderson considers the legal framework, practical steps, and tactical risks.

Introduction

The principle of open justice ensures transparency and accountability in the legal process. However, in limited circumstances, the employment tribunal has the discretion to depart from this principle by granting anonymity orders to protect the identity of one or more parties or witnesses involved in the case. This article will provide a detailed explanation of the legal framework governing anonymity orders, how to obtain one, and the potential legal and tactical risks associated with these orders.

The Legal Framework

Article 6 of the European Convention on Human Rights guarantees the right to ‘a fair and public hearing’, although this principle is not absolute. Anonymity orders in employment tribunals are primarily governed by Rule 50 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. Rule 50 gives the tribunal the power to make a restricted reporting order or to anonymise the identity of a party or witness when it is ‘necessary in the interests of justice’ or ‘in order to protect the Convention rights of any person’ (i.e. Art 8 right to private and family life). The key consideration for the tribunal is whether the order is proportionate and justified in light of the strong presumption in favour of open justice. Anonymity orders are therefore not granted lightly, and the tribunal will carefully balance the interests of justice with the need for transparency.

Case law has developed to provide guidance on when an anonymity order might be granted. This was conveniently summarised at paragraph 48 of the judgment of Simler J in Fallows v News Group Newspapers Ltd [2016] IRLR 827. Having reviewed the authorities, she identified the following 4 propositions:

  • The burden of establishing any derogation from the fundamental principle of open justice or full reporting lies on the person seeking that derogation. It must be established by clear and cogent evidence that harm will be done by reporting to the privacy rights of the person seeking the restriction on full reporting so as to make it necessary to derogate from the principle of open justice;
  • Where full reporting of proceedings is unlikely to indicate whether a damaging allegation is true or false, courts and tribunals should credit the public with the ability to understand that unproven allegations are no more than that. Where such a case proceeds to judgment, courts and tribunals can mitigate the risk of misunderstanding by making clear that they have not adjudicated on the truth or otherwise of the damaging allegation;
  • The open justice principle is grounded in the public interest, irrespective of any particular public interest the facts of the case give rise to. It is no answer therefore for a party seeking restrictions on publication in an employment case to contend that the employment tribunal proceedings are essentially private and of no public interest accordingly;
  • It is an aspect of open justice and freedom of expression more generally that Courts respect not only the substance of ideas and information but also the form in which they are conveyed. Thus as Lord Rodger recognised in Guardian News and Media Ltd: ‘Judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on.’

Ultimately, where competing convention rights are being weighed in the balance, the test is that set out by Lord Steyn in Re S (a child) (identification: restrictions on publication) [2004] 3 WLR 1129 HL, where at paragraph 17 he said: ‘… What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience, I will call this the ultimate balancing test …’ (emphasis added)

Practical Steps to Obtain an Anonymity Order

Anonymity orders should be considered at an early stage of the proceedings, especially if there is a significant risk to a party or witness’s privacy, safety, or mental health. Early identification of the need for such an order will allow parties to file an application promptly, avoiding unnecessary delays and complications during the hearing.

The application must clearly state the grounds for requesting anonymity, with a strong focus on why anonymity is necessary to serve the interests of justice. Common grounds for anonymity in the employment tribunal include:

  • Protection of highly sensitive personal information, such as medical or mental health records.
  • Protection from harassment, reputational damage, or public shaming, especially in cases involving allegations of discrimination, sexual harassment, or whistleblowing.
  • Safeguarding vulnerable individuals, such as whistleblowers, who may face retaliation or harm.

The application should be supported by evidence, including witness statements, psychological reports, or documentation showing the risk of harm or harassment.

An application for an anonymity order can be made formally in writing or orally during a hearing. The applicant should also specify whether they seek full anonymity (where the entire identity is withheld) or partial anonymity (where specific details, such as the name or identifying characteristics, are redacted). The applicant must demonstrate that the order is proportionate and necessary. This is a key element of any application, as the tribunal will weigh the potential harm against the public’s right to know.

The opposing party may challenge the application for anonymity. They might argue that the request is disproportionate or unnecessary, or that the risk of harm is overstated. The opposing party can also raise concerns about the potential negative impact of an anonymity order on public confidence in the tribunal process.

In certain cases, an anonymity order may be accompanied by a confidentiality agreement, particularly in settlement agreements that resolve the dispute before the final hearing. Confidentiality agreements can offer additional protection for sensitive information, but it is crucial that any such agreement does not contravene the general public interest in open justice. In Fallows the EAT acceded to an application, made by Mirror Group Newspapers, for details of a claim made by an employee of Sir Elton John to be made public after then had been compromised. Simler J observed that while there is a public interest in settlement of litigation which is to be encouraged, it does not outweigh the fundamental principle of open justice.

Disadvantages and Tactical Risks of Anonymity Orders

While anonymity orders offer protection, they also come with legal and tactical disadvantages that solicitors must carefully consider when advising clients. One tactical risk associated with anonymity orders is the perception that a party is trying to hide something. While the order might be necessary to protect privacy, opposing Counsel may exploit the anonymity to create an impression that the applicant has something to conceal. This could influence the tribunal’s perception, or the public’s confidence in the tribunal process, particularly if media interest is involved.

Anonymity orders can be difficult to enforce in practice. Although the tribunal can order restricted reporting, in a digital age where information can easily spread via social media and online platforms, maintaining anonymity is challenging. Once information is leaked, reversing the damage can be impossible, particularly in high-profile cases involving public figures or corporations.

Applying for an anonymity order may result in increased legal costs. Opposing parties may challenge the application, leading to further hearings and potentially higher fees. Solicitors should be transparent with clients about the potential cost implications and weigh the necessity of the order against the additional expenses.

Anonymity orders are susceptible to appeal, especially where the opposing party can argue that the order was disproportionate or unjustified. In F v G [2011] EWCA Civ 89, the Court of Appeal reiterated that anonymity orders should be kept under review to ensure they remain proportionate throughout the proceedings. If the tribunal’s decision is found to be flawed, the order could be overturned on appeal, potentially exposing sensitive information to public scrutiny, thereby increasing costs for no benefit.

Conclusion

Anonymity orders play a crucial role in protecting the privacy and safety of parties and witnesses in employment tribunal proceedings. However, they are not granted automatically and must be justified by strong evidence demonstrating that they are necessary and proportionate. Solicitors advising clients on anonymity orders should carefully consider the legal framework, practical steps for obtaining an order, and the potential legal and tactical risks involved. In every case, the balance between open justice and the need for privacy must be carefully navigated.

 

Simon Anderson’s employment law practice encompasses all aspects of individual employment litigation, including contractual disputes, unfair and wrongful dismissal, redundancy, the transfer of undertakings, protected disclosures and equality claims.

Simon has had High Court involvement in executive-pay claims and the enforcement of post-termination restrictive covenants, including obtaining interim injunctive relief. He has notably acted for solicitors threatened with proceedings in the tort of conspiracy resulting from recruitment. Simon has also been involved in claims based in contract and misrepresentation for losses sustained as a consequence of an employee’s breach of the implied duty to take care.

If you would like to book Simon, please contact one of his clerks:

Talia Webster – Lead Employment Clerk on 0113 202 8609

Senior Clerk – Andy Reeves on 0113 213 5252

Joshua Duree on 0113 213 5246

Mike Alexander on 0113 2135268

Ben Ellison-Tope on 0113 2135207