In a recent decision, the Employment Appeal Tribunal (EAT) has held that a claimant should have had an opportunity to present medical evidence to support her application for the tribunal to anonymise permanently the judgment dismissing her claims. We explore the increase in applications for anonymity and what employers should be aware of.
Case background
The claimant in the case brought various claims before an employment tribunal as a litigant in person. Prior to the full hearing of her claims, she applied for permanent anonymity. She made her application on the grounds of poor mental health. The claimant was concerned at references to her prior self-harming behaviour and a suicide attempt in a decision relating to an application to amend and that this information would be permanently available online (and so accessible to her children in future). An Employment Judge refused this application on the grounds that the judgment did not provide sufficient personal detail to evidence that the claimant’s right to privacy justified a derogation from the principle of open justice.
Following a full hearing, the tribunal dismissed the claimant’s claims in their entirety. The judgment was subsequently published on the online register of employment tribunal decisions. Around a year after the judgment was issued, the claimant renewed her application for permanent anonymity. In her application, the claimant stated (amongst other things) that the continuing availability of the unanonymised judgment online itself posed a risk of further self-harm and suicidal thoughts. The claimant offered to obtain an expert psychological report (at her own cost) to both confirm and quantify that risk. The claimant (who continued to be self-represented) asked that her application be dealt with at an oral hearing to explain matters. The tribunal (acting by the same Judge who had refused the original anonymity application) refused the application on the papers on the basis that it was unsupported by medical evidence. The claimant appealed to the EAT.
The EAT determined that it was plainly wrong to have refused the claimant’s application for anonymity on the papers on the grounds that it was unsupported by medical evidence, in circumstances where the claimant had acknowledged that medical evidence may be required and had offered to provide it. The EAT found that the right approach would have been to first give the claimant the opportunity to provide that medical evidence (and suggested that an oral hearing may then have been appropriate). In particular, the EAT was clear that, where there is an assertion of self-harm or suicidal thoughts, this is something that merits serious consideration when determining any anonymity application. The application was remitted to a different Employment Judge for reconsideration.
Increase in anonymity applications
The EAT’s judgment records the significant increase in anonymity applications in employment tribunals in recent years. There are several reasons for this:
- since 2014, judgments are no longer removed from the register after six years;
- since 2017, the register is hosted, and therefore judgments are published, online in a searchable form; and
- unrepresented claimants who are not always aware of the online register at the time of bringing their claim.
Key takeaways
The EAT’s decision highlights not only the increase in applications for anonymity, but also the fact that a party (or witness) can make an application after a case has concluded and that there is no time limit on doing so. Where it was once the case that anonymity would only be sought in the most exceptional cases, it has become an increasingly frequent request in the context of the online register. Tribunals must balance the risk of harm to a party or witness by their identity being discoverable online (and the privacy rights of the individuals concerned) against the principle of open justice. The principle of open justice is intended to ensure that the public can understand the legal process and have confidence in the legal system. Tribunals will only derogate from it where there is a real justification for doing so.
While employers rarely oppose anonymity applications directly, they need to understand how such applications can affect the publication of judgments involving them and be ready to manage reputational and data protection implications if an employee seeks anonymity post-hearing.
