Two recent cases where powerful media organisations have challenged reporting restrictions in employment tribunals highlight newspapers’ right to contest reporting restrictions not just in the criminal courts, but in civil courts and employment tribunals.
The BBC successfully challenged an employment tribunal decision to grant anonymity to a former BBC employee who lost his unfair dismissal case. The tribunal judge made the order in 2014 on the basis that the allegations against the claimant of serious sexual assaults had not been tried and would inevitably be brought up in the tribunal hearing, even though they were not part of the current unfair dismissal claim.
The Bloomberg news agency also recently challenged an employment tribunal, this time for restricting the press’s access to a case management hearing held in private. A Bloomberg reporter was excluded from the hearing, although he had arrived at the tribunal expecting to report on a story involving a former bank executive. Bloomberg argued that the hearing should not have been made private, just because it was within the tribunal’s powers to do so, and that the principle of open justice should prevail. The court countered that it could not time table its hearings at the convenience of the press.
The Bloomberg outcome was inconclusive because the case settled. However, both are useful reminders that in both employment and civil courts that open justice is the starting point when considering reporting restrictions.
Employment tribunal rules of procedure allow wide discretion for a judge to make an order preventing or restricting disclosure “as far as it considers necessary in the interests of justice or to protect Convention rights” either on the judge’s own initiative or on behalf of one of the parties.
The tribunal must give full weight to the principles of open justice and Article 10 (freedom of expression) convention rights, but the tribunal judge can order a hearing to be held in private; for identities of parties and witnesses to be protected; and for restrictions on the reporting of cases involving sexual offences and disability discrimination.
In the BBC case, it emerged in the 2014 gross misconduct hearing that the claimant had been dismissed once before, in 2005, for gross misconduct after photos were circulated of him simulating an explicit sexual act with a student dressed as a children’s television character.
At the conclusion of the hearing, the tribunal judge granted anonymity to the claimant because there could be devastating reputational consequences if the original incident was reported because the public would not understand that the claims were only allegations for which he had never been tried.
In August last year, the BBC applied to have the anonymity order overturned, but lost. At the appeal in May, the employment appeal tribunal found that the first tribunal was mistaken in law.
The Employment Appeal Tribunal judge, Simler J, held that the fact that the claimant had misled the BBC about this incident eroded his Article 8 privacy rights because he had brought proceedings in a public tribunal, knowing that the fact he had not disclosed his previous dismissal may come to light.
Even more crucially for newspapers who question the legal basis of court anonymity orders, the judge reiterated the point made in Guardian News and Media Ltd  UKSC1 that the public is capable of drawing the distinction between “mere suspicion and sufficient evidence to prove guilt”.
Simler J also rejected the idea that there is no public interest in a private employment claim. Just as in civil and criminal proceedings, the principle of open justice extends to any court where there is public interest. Potential employers, colleagues and members of the public had an interest in knowing the identity of the claimant.
The judge made reference to an earlier, 2012 case ( FvG (EAT) 263) stating: “The default position in English law is and should be that it is in the public interest that the full decisions of courts and tribunals including the names of the parties, should be published.”
The BBC case is a welcome confirmation of the overriding principle of open justice. In the tug of war between Article 8 and Article 10 of the ECHR (that is, between the right to privacy and the right to freedom of expression), there were strong considerations in favour of Article 10.
A claimant’s identity should not be protected simply because publicising his case would be ‘damaging or embarrassing’. The default position is that employment tribunal judgments should be published in full, including the names of the parties.