Background: 

The claimant brought a series of claims against the respondent including one of sexual harassment and sexual assault against another employee who was also a separate respondent.   The claimant applied for an anonymity order which was given effect.  The Tribunal, at first instance, held that the substantive claim was false and that there was a lack of truthfulness from the claimant.  The Tribunal used its powers to revoke the anonymity order. The Tribunal also ordered the claimant to contribute £20,000 towards the respondents’ costs on the basis that the claims brought were unreasonable. 

Outcome: 

The claimant appealed against the findings of the Tribunal relating to anonymity and the costs order.  On anonymity, the EAT examined the wording of the Sexual Offences (Amendment) Act 1992 providing for identity to be protected.  This stated that an ‘allegation has been made’ which the EAT held required that it would intend to raise the real possibility of a criminal charge following.   Therefore, it was in the context of a criminal case that the Act applied – it did not include the making of an allegation in family, civil or Tribunal proceedings.  There were no allegations made in a criminal context against the other employee. Accordingly, the EAT held the Tribunal was correct to revoke the anonymity order.  There was a change of circumstances after reviewing the evidence and that there were large parts of the evidence which were fabricated. Accordingly, it was right to say that there was public interest in allowing the author of a dishonest account being known. 

On the issue of costs, the EAT agreed with the decision.  They did note that the rules outlined that the ability to pay could be taken into account, but noted that it was discretionary.  Whilst the Tribunal, at first instance, said they did not take into account the claimant’s ability to pay the EAT found that in fact they had considering that evidence was sought on the issue and that evidence from the claimant was not accepted.  

Practical Guidance for Employers: 

This case demonstrates that in harassment cases especially the alleger cannot hide behind a cloak of anonymity completely when such an order is made.  There is the possibility to have it revoked following the hearing with the Tribunal outlining that there is a public interest in ensuring that those who give dishonest accounts are made known.    

Read the full case here: https://assets.publishing.service.gov.uk/media/65c9f4e714b83c000ea7169b/Z_v_1__Commerzbank_AG_2__Mr_Lars_Vogelmann_3__Ms_Hope_Jackson_4__Mr_Gary_Booth_5__Ms_Yogita_Mehta_6__Q__2024__EAT_11.pdf