Open justice

When deciding whether to restrict reporting in a case involving allegations of sexual misconduct, the Employment Appeal Tribunal (EAT) has held in A and B v X, Y and the Times Newspapers Ltd that when carrying out the balancing exercise between the interests of accuser and accused, the principles of open justice must be fully taken into account.

Basic facts

The claimants, who were employed by the first respondent (known as X), made claims of sexual harassment to the tribunal. These claims included allegations that they had been committed by the second respondent (known as Y), who was described in the judgement as a “public figure with a well-known family name”.

As the claimants were protected by section 1 of the Sexual Offences (Amendment) Act 1992, they were granted anonymity up to the judgement. Before their allegations were considered by the tribunal, both X and Y asked for Restricted Reporting Orders (RRO) and Anonymity Orders to be granted to them under section 11 of the Employment Tribunals Act 1996 (ETA) and Rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (ETR).

Y also argued that granting these orders was necessary to protect the right to privacy under section 8 of the European Convention on Human Rights.

Relevant law

Rule 50(1) of the ETR states that tribunals can make an order restricting public disclosure of the proceedings “in the interests of justice” or to protect a person’s rights under the ECHR.

Rule 50(2) states that when considering whether to make an order, tribunals must “give full weight to the principle of open justice and to the Convention right to freedom of expression”.

Tribunal decision

Holding that it had to balance the conflicting interests of the Article 8 right to privacy against the Article 10 right to freedom of expression under the Convention, the tribunal granted the RRO on the basis that it carried the least infringement of Article 10.

However, the judge refused the request for Anonymity Orders on the basis that there was no known press or wider public interest at present and therefore no need to “take the case underground to this extent”.

EAT decision

The EAT held that, when carrying out the necessary balancing exercise, between the interests of accuser and accused, the tribunal judge had not fully taken into account the principle of open justice. Instead she had assumed that the principle would be satisfied because the hearing would take place in open court.

The starting point, however, was that the principle of open justice includes press reporting the case, based on the assumption that it will be reported fairly and accurately. The judge was wrong to place weight on the risk that there may be misreporting of the case. In addition the public interest in open justice had to be considered separately from the Article 10 right to freedom of expression. The judge failed to take that into account.

As to parity between the victim and the alleged perpetrator, the judge was also wrong as part of the balancing exercise to take account of the imbalance in the 1992 Act, which reflected Parliament’s conclusion that protection should be given to the alleged victims but not the alleged perpetrators of sexual offences.

The EAT therefore remitted the application for an RRO to a freshly constituted tribunal and dismissed the appeal with regard to the refusal of an Anonymity Order.