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Legal Insight: Privacy matters in the Underhill employment tribunal review

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10th Aug 2012
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On 11 July 2012, the Honourable Mr Justice Underhill unveiled his Fundamental Review of Employment Tribunal Rules, which included recommendations and new draft regulations. 

One area of the Review that has attracted a lot of interest over recent months relates to matters of privacy, restricted reporting and anonymity during and after tribunal cases, particularly if parties have sought to rely on Article 8 of the European Convention of Human Rights – the right to respect for private and family life.   A key issue here is that, if an individual wishes to remain anonymous or to ensure that certain confidential information is not disclosed, tribunals and other courts are required to balance their Article 8 rights against the right to freedom of expression, which is contained in Article 10 of the Convention.   But because this situation could lead to a significant increase in the number of privacy orders issued by tribunals, it is important to understand what the proposed changes could mean for HR directors.   Currently it is possible for employment judges or tribunals to restrict publicity if a case involves:  

  • national security
  • allegations either that a sexual offence or sexual misconduct were committed
  • a complaint under section 120 of the Equality Act 2010, where the complaint relates to disability and in which evidence of a personal nature is likely to be heard by the tribunal
  • an issue that relates to an individual’s right to respect for private and family life under Article 8 of the ECHR.

 Protecting identities  Rules 49 and 50 of the Employment Tribunals Rules of Procedure currently set out when a tribunal may:  

  • anonymise their record of proceedings, including judgments and reasons if there have been allegations that a sexual offence has been committed (Rule 49)
  • order both temporary and fully restricted reporting orders (Rule 50). 

  A restricted reporting order prohibits any “identifying matter” from being made publically available through print or broadcast media in Great Britain and, unless revoked, remains in force until the tribunal makes a decision.    The “identifying matter” normally includes anything that would enable the complainant, or the people linked to them, to be identified, or affected by, an allegation.    However, in a number of cases where Rules 49 and 50 of the Employment Tribunals Rules of Procedure did not apply, tribunals still protected the identity of the individuals involved, both during and after proceedings had taken place.    In these cases, tribunals exercised their general powers (currently under rule 10 of the Rules of Procedure), and extended an individual(s)’ right to privacy by relying on Article 8 of the ECHR.   The most recent case in which the issue of privacy was considered by the Employment Appeal Tribunal was in F v G [2011] UKEAT/0042/11. This case was heard by Underhill himself, who was formerly the EAT’s president.   A developing area  The EAT held that, in this particular case, the tribunal was not entitled to grant permanent anonymity under Rule 49 of the Rules of Procedure as there was no evidence that a “sexual offence” had been committed.   However, it could grant permanent anonymity on the basis that to do otherwise would be a breach of the parties’ rights under Article 8 of the ECHR.   Underhill’s judgment not only recognised that the area was a developing one, but it also set out some useful guidance for tribunals on how to apply Rules 49 and 50 of the Rules of Procedure and granted relief under Article 8 of the ECHR.    It was unsurprising, however, that the Underhill Review, which was commissioned a month after this judgment, looked to address these issues and suggest new draft rules.    The proposed new rule 55 updates the previous legal position in light of recent case law and the requirements of the Human Rights Act and EU jurisprudence. It should also unify the approach of tribunals and the High Court.    The increased clarity and flexibility of this new rule should likewise reduce the need for privacy issues to be escalated to the EAT, as has been the case lately, which should, in turn, reduce application costs.   But the new rule also widens the scope under which an application can be made and expressly includes a tribunal’s right to make orders that protect the ECHR-based rights of any individual.  Restricted reporting orders As a result, the number of applications being brought is likely to increase as individuals and organisations seek more privacy to protect their own and/or reputation of the business.      However, in light of the need to balance competing rights under the ECHR, a provision has been included to ensure that tribunals must consider the principles of open justice and the right of freedom of expression before issuing any anonymity or restricted reporting order.   Given the conflict between Articles 8 and 10 ECHR, we expect this to remain a developing area of law in both the tribunals and courts for some time. A further key legal change relates to the ability of tribunals to create restricted reporting orders that last either indefinitely or until a date specified by them.    This situation allows a tribunal to issue a restricted reporting order for the duration of a hearing and then, after having heard all of the evidence, consider whether a further or indefinite order would be appropriate.    Provision is also made for any party - or other person with a legitimate interest in the order - who has not had the opportunity to make recommendations before an order is made, to apply for it to be revoked or discharged.    This change is likely to result in more people claiming an interest in these matters and could well see more members of the press challenging anonymity and restricted reporting orders (particularly indefinite ones) by relying on Article 10 of the ECHR.    A formal consultation on Underhill’s review is expected to start later this year, however.   Practical advice for HR directors:   1. Upon receipt of a claim form (ET1), consider whether the allegations raised warrant an attempt to seek privacy or a restricted reporting order for your organisation and/or any named individual(s). For instance, if a claim contains confidential information that you do not want in the public domain such as details of confidential operations or matters of national security, or includes allegations that could have reputational or criminal implications such as corruption, fraud, sexual misconduct and/or discrimination, you may have strong grounds to seek a privacy or restricted reporting order.   2. If you have privacy concerns, seek legal advice immediately on whether, and under which ground(s), you can apply for an anonymity or restricted reporting order. Given that the reporting restrictions are limited to Great Britain and it is currently difficult to enforce restrictions against social media channels, taking prompt action is key and is more likely to protect any legitimate privacy concerns.   3. Ensure that any internal investigations carried out to prepare the response form (ET3) are handled sensitively and confidentially and that documentation is kept securely.   4. If a claimant seeks anonymity or a restricted reporting order, which is most likely to occur in cases of sexual misconduct and/or disability discrimination claims, it may be difficult to object to his/her application. However, take legal advice promptly on whether it is possible to apply to extend the anonymity or restricted reporting order to cover your organisation and/or any named individual(s).   

Sarah Ash is an associate at law firm, Morgan, Lewis & Bockius.

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