Highly sensitive evidence in tribunal might warrant anonymity order

Anonymity orders can be issued at the discretion of the Employment Tribunal (ET) in order to prevent or restrict the public disclosure of some aspect of the proceedings. Employees may request an anonymity order to protect personal circumstances, safeguard their reputation or make it less likely that they are seen as litigious employees, thereby hampering their future employment prospects. When considering making an order, the tribunal must take into account the right to freedom of expression and the principle of open justice: that justice is being done and is being seen to be done. These factors mean that, in practice, anonymity orders are not frequently made.

In X v. Y UKEAT/0302/18,the claimant sought unpaid wages and holiday pay. The claims were out of time, but the tribunal considered the claimant’s transgender status and mental health issues in deciding whether to extend the time limit and granted an extension. On receiving the judgment, the claimant asked that it be anonymised and all references to X’s transgender status and mental health conditions deleted. The tribunal declined.

On appeal, the Employment Appeal Tribunal (EAT) overturned the decision of the ET and anonymised the judgment of the ET and its own. The EAT considered the fact that the claimant was unrepresented and therefore would not be aware of the right to apply for an anonymity order, as well as the sensitivities of the claimant’s personal circumstances. The EAT, however, made clear that there is no rule that cases involving transgender individuals or mental health issues must be anonymised. They have to be decided on the facts.

On the issue of deleting sections of the judgment, the EAT held this would rarely be a proportionate measure in order to protect the individual’s privacy. It said deletion would have resulted in a judgment that did not reflect the true reasoning, and the important consideration of open justice outweighed the claimant’s privacy concerns in this case.

This case highlights the balancing act between sensitive personal matters, such as transgender status and mental health issues, and the right to freedom of expression and open justice. The circumstances of this case show which factors may justify an exception to the general rule that justice be seen to be open.

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Emily Shaw

About Emily Shaw

Emily Shaw is an associate in Dentons’ Glasgow office. She is a member of the People, Reward and Mobility practice group. Emily focuses on a wide range of UK employment law issues. She has experience in acting for both employers and employees, covering both contentious and non-contentious work. Emily's experience includes: reviewing contracts, company policies and procedures; assisting international businesses; coordinating multijurisdictional projects; and advising clients on exiting strategies.