The claimant made a number of claims against his former employer for unpaid wages and holiday pay.   The claimant was successful in those claims and the Judge gave them 14 days to clarify as to whether they wished to proceed with a disability discrimination claim.  The claimant did not appeal the substantive rulings nor did they proceed with the disability discrimination claim.  The appeal was on the basis of the written judgment, where the claimant was referred to as a transsexual man and that he had mental health issues.   He sought those references to be deleted from the judgment or it should be anonymised to the extent that he could not be identified.  The respondent took no part in the proceedings and the Judge stated that they probably had no particular interest in the appeal issue.

The novel issue that had to be dealt with was not solely the claim for anonymisation but rather the request that certain elements of the ET judgment be deleted or redacted.  The claimant stated that this should be done in relation to assertions made about having multiple personalities, as well as his relationship with his mother.  He claimed they were inaccurate representations.

The basis of the appeal was Article 8 of the European Convention on Human Rights which provides protection for private and family life.   This has to be balanced with Article 6, the right to a fair trial, which encompasses the principle of open justice and ensuring judgments are publicly pronounced.

In trying to find a balance between these rights, the EAT held that the reference made to the mental health issues was done on the basis of a limitation issue raised at first instance.   Without reference to this in the judgment it would have led to the reader being misled and would have given a censored impression of the reasoning adopted by the Judge.  For that reason, it would have been disproportionate to have a redaction or a deletion of that material. The EAT also noted that the effect of allowing them to alter the judgment of the ET Judge could have disastrous consequences.  It would no longer be the judgment of that Judge who had heard the evidence and may lead to issues when it comes to substantive appeals.

Despite the problems with changing the already written judgment, the EAT held that Rule 50 of the ET Rules of Procedure (Rule 44 of the Industrial Tribunal and FET Rules of Procedure in NI) does go beyond mere anonymisation and permits an order which would prevent public disclosure of any aspect of the proceedings.  However, that would only be used in wholly exceptional circumstances.

In terms of anonymisation, the EAT outlined that the Judge would have to do this of their own volition under the rules and that this was a case where it should have been exercised.  Whilst it was not requested, there should have been heed given to the fact that the claimant did not attend the hearing, preferred not to leave the house and that his father was representing him.  Despite being understandable that the ET Judge did not grant anonymisation on his own volition, the failure to do so was regarded as 'plainly wrong’.   Accordingly, anonymisation was granted.

Practical Lessons: This appeal centred upon a dispute between the claimant and the Judge of first instance in refusing to change the judgment or anonymise it.  The EAT gave its view on the scope of Rule 50 (Rule 44 in NI), stating that it has broad use.  It could be used to alter the judgment and the Judge is expected to be mindful of it throughout the proceedings in granting anonymity, even where it has not been requested by any of the parties.

https://assets.publishing.service.gov.uk/media/5f24027ae90e071a56f93517/X_v_Y_UKEAT_0302_18_RN.pdf