The appellant here, a third party to the original proceedings, appealed against the refusal to order anonymisation for her in relation to her name being within a published judgment. The issue arose from a claim brought by two claimants against the respondent. The third party worked the respondent but had resigned and decided not to attend the disciplinary hearing relating to the two claimants. The case against the claimants was based upon dishonesty. The third party was related to the claimants and had provided two documents in support of the claimants. At first instance, the respondent had made claims of dishonesty against the third party and the Judge named the third party in the judgment as well as the claims.

After the judgment had been published, the third party contacted the Tribunal office asking for her name to be redacted. She argued that it was highly damaging to her employment prospects as well as her reputation. She subsequently made a formal claim under the Rules of Procedure for anonymisation. Her evidence was that a google search of her name brought up the judgment which made it difficult for her to work in the industry. The Tribunal Judge at first instance stated that her Article 8 rights to family and private life, had not been engaged. The Judge also outlined that there was no reasonable expectation of privacy considering that there is open justice, and it was a public trial.

The third party appealed the decision. It was found that just because information had been mentioned at a public hearing did not mean that Article 8 could not be engaged.  It was only a factor that had to be considered in the round. The Judge had therefore erred in finding that the publicity prior to publication of the judgment to be fatal to the question of engaging Article 8. It was also found that the third party had a reasonable expectation that she would not be named. Indeed, her name was not essential to the intelligibility of the judgment and the prospect of damaging her reputation was self-evident.

The next question was whether the Article 8 rights were outweighed by the principle of open justice. The EAT found that the Judge had erred in this exercise as it was stated that open justice should only be overridden in rare situations. Instead, it should have been a balancing of the rights. This was not a matter the EAT could consider so the case was remitted back to the Tribunal to determine the balancing of the Article 8 rights against the principle of open justice to determine if the anonymisation order should be granted.

Practical Lessons

This case demonstrates the importance of anonymisation and how it can extend to those who are not parties to the case but are mentioned in the judgment.  In employment cases they can be multi-faceted and have extremely lengthy factual backgrounds. This will inevitably touch upon many individuals who will be mentioned. Where there is an impact on the private life, such as the reputation, of an individual then the Tribunal should consider whether it is appropriate that they are mentioned by name. This needs to be balanced against the principle of open justice which ensure that the public remain aware of what the Tribunals and Courts are doing. Therefore, the balancing of rights is the key aim.
https://www.gov.uk/employment-appeal-tribunal-decisions/tyu-v-ila-spa-ltd-ea-2019-000983-vp-formerly-ukeat-slash-0236-slash-20-slash-vp