Privacy in public: Restricted reporting Orders in the Employment Tribunal

After attending a conference recently, I have been weighing whether a Tribunal would conduct a hearing in private or grant a restricted reporting order when dealing with sensitive matters, specifically in the care or education industry.

It is increasingly commonplace that care and education sector employees will face disciplinary action for safeguarding concerns. The welfare of children, young and vulnerable people in care and education is undoubtedly of paramount importance. When a line is crossed and disciplinary action instigated, accused employees often 'bite back' and start to hurl allegations at colleagues, or even at vulnerable service users. Bearing in mind that any journalists or members of the public are typically free to attend, observe and publish information about tribunal hearings, this can pose any number of practical issues for a regulated care or education provider, or those in their charge seeking anonymity from having their private lives on show to the world.

One such scenario has arisen recently, where a business I advise is facing a tribunal claim from an employee intent on maximising disruption through disclosure of private information. The claimant in question has disclosed confidential details of service users and their private medical history, details of colleagues, including their medical conditions, and sensitive tender pricing information, all within a very verbose tribunal claim form.

Employment tribunals are traditionally and legally a public forum. It is worth bearing in mind that judgments are published and archived on the website. The premise behind this is that the tribunal forum will give full weight to the principle of open justice, however can do as necessary to protect the rights of any individual under the European Convention on Human Rights, specifically Article 6 (the right to a fair trial), Article 10 (the right to freedom of expression) and Article 8 (the right to respect for private and family life).

In the authoritative case of F v G UKEAT/0042/11/DA, the Employment Appeal Tribunal considered the factors that tribunals can take into account when considering whether to grant a restricted reporting order (RRO) or an anonymity order, preserving the confidentiality of any individual who is a party to or named in tribunal proceedings.

The proposition to derive from F v G is that RRO's and anonymity will be relatively rare in tribunal proceedings, and usually only granted in exceptional cases involving some sexual element, disability or national security considerations, for instance. The onus is very much on the party applying for such discretion to demonstrate to the judge why it should be granted, against the principle of open justice.

A tribunal is not constrained to consider only the impact on the administration of justice when weighing up whether to make an RRO. For example, there is nothing to prevent a tribunal from considering the distress and damage to reputation from the reporting of unproven allegations of sexual offences. A tribunal may also consider how the public may perceive the information, although the public are trusted to understand the different between allegations and convictions, if there is a criminal element involved. Where details of an individual's medical condition is crucial to the evidence of any claim, the potential for embarrassment is also an element meriting consideration. Tribunals have a multi-faceted approach to the question of restricted reporting and anonymity and cases will be determined based on their unique facts. Tribunals will grant such privacy only in exceptional cases.

In short, it seems the starting point is to assume that any tribunal proceedings will be conducted in an open, transparent and archived forum, subject to the glare, scrutiny and commentary of journalists and members of the public. Justice is not only done, it must be seen to be done.

In cases where disgruntled claimants have difficulty separating the essential details of their claim with the confidential and private lives of their colleagues or those in your care, please remember to discuss seeking RROs or anonymity with your representative - it may be crucial to protect their right to respect for private and family life in circumstances where they are unable to protect it themselves.