Companies must have good reasons to justify a departure from the principle of open justice, says Rhian Radia
Publicity can be a double-edged sword for employers and employees. Employees often believe the potential for reputational harm to a company may drive a settlement on issuing an employment tribunal claim.
At the same time, however, being seen by prospective employers as a litigious hire can be career limiting for employees, and their motives for bringing a case, if focused on revenge with a determined aim of damaging reputation, can be relevant to an application for an anonymity order. Employment tribunals will not look kindly on such motivations, and threats of bad publicity could ironically assist employers in achieving anonymity.
The area of anonymity remains a battleground in the early life of employment tribunal claims where there are sensitive factual backgrounds – in particular, claims for sexual harassment. Where criminal proceedings are not pursued, however, applications for anonymity are likely to be all about the safeguarding of reputations.
The starting point is that the principles of open justice and freedom of expression are paramount. With this in mind, applications for anonymity orders should theoretically be the exception rather than the rule. They are not, however, and could be viewed as having tactical motivations. Where this is the case and applications for anonymity are pursued without merit, costs consequences cannot be ruled out.
All or nothing area
Half-hearted applications for anonymity orders may be more likely to fail, as this appears to be an all or nothing area. If an employer merely seeks to prevent damage to its reputation or that of one of its management without requesting a private hearing of the evidence, attempting to exclude the press, preventing a name being mentioned by witnesses or applying for a restricted reporting order, a tribunal judge may feel that the limited application is unlikely to ever succeed in protecting damage to reputation anyway.
An employment judge may decide that the better option is to alleviate potential damage to reputation by assessing the merit of the allegations. Different considerations are likely to apply where vulnerable individuals are involved.
The type of order that could be sought by an employer is one that identifies specified parties, witnesses or other persons who should not be disclosed to the public by means of anonymisation, for example, whether during the hearing itself, in listings or in any documents forming part of the public record.
However, employment judges prioritise open justice to provide reassurance to the outside world that justice is being done, and this should not be behind closed doors. This may be all the more relevant at the moment since employment tribunal fees have been found to be illegal for obstructing accessing to justice. In the current climate, it is more vital than ever that justice is seen to be done, even in private employment matters.
Tribunals will not go further than is necessary to protect the rights of the party applying for an anonymity order. The application should be carefully thought through in advance in terms of the extent of the protection needed, who is covered and for how long.
Employers will need to justify their attempts to obtain anonymity and set out clearly in witness statements why there should be a departure from the overriding principle of open justice. Employment judges have found arguments from employers that the public may misunderstand the issues in a case highly unconvincing. Protecting against potential embarrassment alone is not going to result in an anonymity order.
This article first appeared on People Management, January 2018.