F v G (Practice and Procedure : Restricted Reporting Order)

Factual and Procedural Background

The case concerns claims of sex discrimination and unfair dismissal brought by the Plaintiff, a former care enabler, against Company B, a further education college with residential facilities for severely disabled students. The Plaintiff worked at the College from 2002 to 2004 and again from 2005 until her resignation in 2009. Her duties included washing students who were unable to wash themselves, including their private parts.

In 2008, following a recommendation from a regulatory body, the College introduced a formal Relationships and Sexuality Policy ("the Policy"). A key element of the Policy was that disabled male students who were physically unable to masturbate could receive voluntary assistance from staff in applying and removing an aid to facilitate this. The Plaintiff's core complaint was that she was twice required to wash a male student shortly after such assisted masturbation, which she found repugnant and felt associated her with the act.

The Plaintiff brought complaints of unlawful harassment and direct sex discrimination and claimed constructive and unfair dismissal. During the proceedings, various restricted reporting orders were made to protect the identities of students and staff, including a restricted reporting order under rule 50 of the Employment Tribunal Rules of Procedure. Subsequently, Employment Judge Dean made a permanent anonymity order under rule 49, anonymising the parties, students, and staff to prevent publication of intimate details related to the Policy.

The Plaintiff appealed against the permanent anonymity order.

Legal Issues Presented

1. Whether the Employment Judge was correct to make a permanent anonymity order under rule 49 of the Employment Tribunal Rules of Procedure, which applies only to cases involving allegations of the commission of a sexual offence.
2. Whether, notwithstanding the absence of allegations of a sexual offence, the Tribunal has power under its wider procedural powers and relevant case law to make an anonymity order to protect the article 8 rights of affected persons.
3. How to balance the competing rights under article 8 (right to privacy) and article 10 (freedom of expression and open justice) of the European Convention on Human Rights in the context of anonymisation and reporting restrictions.
4. Whether the anonymity order should extend to the identification of the College and the Plaintiff, given the potential for indirect identification of vulnerable students and staff.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff contended that the permanent anonymity order was inappropriate because there was no allegation of a sexual offence within the meaning of rule 49.
• She asserted that the Policy was a public document, and therefore the existence of assisted masturbation services was already in the public domain, making anonymisation unnecessary.
• The Plaintiff objected strongly to any restricted reporting orders and wished for the Judgment to be published naming herself and the College.
• She challenged procedural aspects, including the length of time allowed for the Respondent's counsel compared to her own representative.

Respondent's Arguments

• The College argued that the Policy and the intimate nature of the assistance provided implicated the article 8 rights of vulnerable disabled students and staff who volunteered to assist, justifying permanent anonymisation.
• It was submitted that publication of identifying information would cause irreparable damage to the privacy and dignity of these individuals.
• The Respondent contended that even if rule 49 did not strictly apply, the Tribunal had wider powers under its procedural rules and case law (notably X v Commissioner of Police of the Metropolis and A v B) to make anonymity orders to protect article 8 rights.
• The College emphasized that the Plaintiff's representative's conduct and correspondence had heightened the risk of damaging publicity.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by examining the statutory framework governing anonymity and restricted reporting orders, focusing on rules 49 and 50 of the Employment Tribunal Rules of Procedure and the enabling provisions in the Employment Tribunals Act 1996. Rule 49 applies mandatorily only to cases involving allegations of sexual offences, while rule 50 provides discretionary powers to impose restricted reporting orders in cases involving sexual misconduct or disability discrimination claims.

The Judge's order was made under rule 49, but the Court found no specific or credible allegation of a sexual offence within the meaning of the rule. The Plaintiff’s claims and the evidence did not support such an allegation, and police advice confirmed no offence had been committed. Therefore, the mandatory application of rule 49 was incorrect.

However, the Court acknowledged the Tribunal's wider procedural powers, as recognised in the precedents X v Commissioner of Police of the Metropolis and A v B, to make anonymity orders to protect article 8 rights to privacy, even when rules 49 and 50 do not strictly apply. The Court accepted that the College’s students and staff had legitimate article 8 rights that could be infringed by publication of identifying information.

The Court identified the relevant individuals whose privacy required protection as the vulnerable disabled students, including a specific student featured in the claim, and staff volunteers involved in assisted masturbation. It held that revealing their identities or the College’s identity would indirectly identify these individuals, thus infringing their privacy rights.

The Court balanced the competing Convention rights: the article 8 rights of the vulnerable individuals against the article 10 right of open justice and freedom of expression. It found that the public interest in full publication was not absolute, particularly given the sensitive nature of the information and the limited public importance of the individual employment claim. The Plaintiff’s wish for open publication was respected but outweighed by the privacy interests of third parties who had no involvement or interest in the litigation.

The Court also addressed the Plaintiff’s argument that the Policy was a public document, concluding that while it may be known within certain circles, it was not generally public knowledge. Publication of the Judgment without anonymisation would place sensitive details into the public domain, causing distress and humiliation to the students and staff concerned.

The Court found a defect in the Judge’s reasoning for failing to explicitly explain why naming the College would infringe article 8 rights, but exercised its own discretion to uphold the order based on the evidence and submissions before it.

Finally, the Court noted that the anonymity order under rule 49 does not prevent parties from publishing identifying information themselves and suggested that if further protection against such publication is required, an extended restricted reporting order under rule 50 would be appropriate.

Holding and Implications

The Court DISMISSED THE APPEAL against the permanent anonymity order.

The Court held that although the Employment Judge erred in making the order strictly under rule 49 due to the absence of allegations of a sexual offence, the permanent anonymity order was justified under the Tribunal’s wider procedural powers to protect the article 8 rights of vulnerable students and staff affected by the Policy.

The order anonymises the parties, the College, students, and staff to prevent publication of intimate details that would infringe privacy rights. The decision balances the principle of open justice and freedom of expression against the need to protect the privacy and dignity of vulnerable individuals.

No new precedent was established beyond affirming the application of existing principles regarding anonymity orders under wider procedural powers and the balancing of Convention rights in sensitive employment tribunal cases.