R Doshi v British United Provident Association Ltd: 2224652/2024
EMPLOYMENT TRIBUNALS
Case No 2224652/2024
Between
R DoshiClaimantBritish United Provident Association LtdRespondent
Before
Employment Judge SalterMr. Rhodes (instructed by solicitor) for respondentDate 27 November 2025
JUDGMENT
The Claimant’s application under r49 of the Employment Tribunal Rules of Procedure 2024, is partly successful
REASONS
References in square brackets below are unless the context suggests otherwise to the page of the bundle. Those followed by a with a § refer to a paragraph on that page and references that follow a case reference, or a witness’ initials, refer to the paragraph number of that authority or witness statement. References in round brackets are to the paragraph of these reasons or to provide definitions.
INTRODUCTION
[1]These are my reasons given orally at the final hearing on Monday, 3rd November 2025. As explained at that hearing in accordance with Rule 60(4) of The Employment Tribunal Procedure Rules 2024 (“the 2024 Rules”) written reasons would not be provided unless they are asked for by any party at the hearing or by a written request presented within 14 days of the sending of the written record of the decision. If no such request is made, then the tribunal will only provide written reasons if requested to do so by the Employment Appeal Tribunal or a court.[2]The Employment Tribunal is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has recently been moved online. All judgments and reasons since February 2017 are now available at: https://www.gov.uk/employment-tribunal-decisions. The Employment Tribunal has no power to refuse to place a judgment or reasons on the online register, or to permanently remove judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in any way prior to publication, you will need to apply to the Employment Tribunal for an order to that effect under Rule 49 of the 2024 Rules of Procedure. Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted to a party or a witness.[3]After giving judgment at the hearing, in discussion with counsel for the Claimant, it was agreed it was unnecessary for the judgment to address any detail in the application other than its outcome, and that the Case Management Order arising from the hearing would do so, as far as was necessary.[4]Despite being successful in his application and represented by counsel at the hearing. The Claimant sought written reasons by way of written application dated 7th November 2025 albeit the application referred to the 2013 predecessor Tribunal Regulations.[5]As discussed at the Preliminary hearing the judgment on the decision would be published online. In light of the Claimant’s request for written reasons, so must these reasons.
BACKGROUND
[6]So far as is relevant the history of this matter is this: the Claimant presented his Form ET1 on 16th September 2024. It contains complaints of disability discrimination. In that Form he requested that the matter “cannot go on the register”.[7]The Respondent entered its response with a Grounds of Resistance. In those Grounds the Respondent sought particulars of the claim, including details of how the Claimant’s claimed impairments amounted to disabilities within the meaning of section 6 of the Equality Act 2010.[8]The matter came before Employment Judge J.S. Burns on 18th February 2025, who conducted case management, and:(a) Identified the claimant’s claims as failure to make reasonable adjustments and discrimination arising from disability. The Case Management Order sets out the relevant aspects of the claim in clear detail, and do not need to be repeated here, suffice it to say they identify the “thing arising” and substantial disadvantage necessary for the Claimant’s complaints;(b) listed the mater for Final Hearing between 20-23rd January 2026.(c) Ordered the Claimant to (i) provide an impact statement concerning the claimed impairments (ii) provide evidence in support of his rule 49 application[9]The Claimant’s application under rule 49 was dated 8th April 2025 and sought(a) all remaining hearings in this matter will be conducted in private;(b) any reporting of these proceedings will not identify the Claimant;(c) the names of the Claimant, Respondent and any witnesses will be anonymised in all remaining hearings in this matter; and(d) the case will not be published on the Tribunal’s register.[10]The application refers to a supporting letter from Dr Maria Jalmbrant, Clinical Psychologist.[11]The Claimant also provided an impact statement.[12]On 11th April 2025 the Respondent emailed the Tribunal stating: The respondent takes a neutral stance on the claimant's application. The respondent recognises that this is a matter for the Tribunal to determine and that the Tribunal's discretion to make privacy orders should not be exercised automatically even where the application is not opposed (X v Y Ltd 1998 ICR 43). This is codified in the language of Rule 49(2) which requires the Tribunal to "give full weight to the principle of open justice and the Convention right to freedom of expression." We therefore leave it to the Tribunal to determine whether such an order is warranted in this case and, if so, what form of order would be proportionate in all the circumstances.[13]By way of Notice of Hearing dated 19th May 2025 the matter was listed for a two hour Preliminary Hearing to determine “the Rule 49 application”.[14]After receipt of the impact statement the Respondent conceded the Claimant was disabled within the meaning of section 6, but continued to dispute knowledge of disability and knowledge of substantial disadvantage.[15]Despite the Respondent’s acceptance of the Claimant as a disabled person the claimant continued with his application, seeking the same protections. TODAY’S HEARING General[16]The matter came before me to determine the privacy application. The hearing had a two-hour time estimate. At 1250 on the day of the hearing the Claimant provided a skeleton argument in support of the application.[17]The Claimant was represented by Mr Malik of counsel, who provided the skeleton argument and made helpful submissions to amplify those submissions.[18]The Respondent was again represented by Mr Rhodes.[19]This was a remote hearing which was not objected to by the parties, being conducted entirely by CVP video platform. The parties were able to hear and see what l heard and saw. From a technical perspective, there were no significant difficulties; although Mr Rhodes did keep disconnecting, but these were for short periods of time and the hearing did not continue in his absence.
THE LAW
[20]I was referred to the decision snad guidance in the cases of X v Y [2020] IR:R[21]I was not referred to these authorities by the parties, but bear in mind the following principles:(a) Justice must not only be done, but should ‘manifestly and undoubtedly be seen to be done’ R v Sussex Justices, ex parte McCarthy [1924] KB 256.(b) Per Lady Hale in Cape Intermediate Holdings v Dring [2019] UKSC 38 at paras 42-43, there are two principal purposes of the principle of open justice: (i) ‘to enable public scrutiny of the way in which courts decide cases - to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly’; and (ii) ‘to enable the public to understand how the justice system works and why decisions are taken’.(c) The reporting of judgment without restriction is part and parcel of the principle of open justice [BBC v Roden 2015 IRLR 630 at para 50], and open justice is of paramount importance and derogations can only be justified when they are strictly necessary;(d) The burden of establishing any derogation lies on the person seeking that derogation and it must be established by ‘clear and cogent evidence that harm will be done by reporting to the privacy rights of the person seeking the restriction’ (Fallows v News Group Newspapers [2016] ICT 801 (EAT)).(e) Neither the right to freedom of expression, right to a fair trial nor the right to private life takes precedence. Where they are in conflict: (i) there must be an intense focus on the comparative importance of the rights being claimed in the individual case, (ii) the justification for any interference must be taken into account; and (iii) the proportionality test must be applied Re S (A Child) [2005] 1 AC 593 (HL) at para 17.(f) Where a privacy restriction is for a limited period, that is less objectionable than a restriction on disclosure that is permanent (R v Legal Aid Board, Ex parte Kaim Todner [1999] QB 966 (CA) at para 6; Fallows).(g) It is not unreasonable to regard a claimant, who has chosen to initiate proceedings, as having accepted the normal impacts of the public nature of court proceedings including the embarrassment and reputational damage which may be inherent in being involved in such litigation; whereas a witness is in a different position and may have a stronger claim to be protected if likely to be prejudiced by publicity (Kaim Todner at para 8).(h) If a Rule 49 order is granted, it must be no more than strictly necessary to achieve its purpose Curless v Shell International Ltd [2020] ICR 431 (CA) at para 39.[22]The Claimant relies on Article 8, Article 8, the right to respect for private and family life, is a qualified right. It is subject to lawful interference necessary in a democratic society or to protect the rights and freedoms of others. The Article provides as follows: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. THE APPLICATION Respondent’s Position[23]As set out above the Respondent was neutral to the application. However, I must consider the application irrespective of the Respondent’s position. What kind of order is being considered / sought?[24]I have set out the wide ranging scope of the orders being sought by the Claimant above. What are the details of the order being considered[25]As I stated above the terms of the orders sought are extensive and absolute. For instance, there is no limitation on time they will continue for, and the range of them is to result in no public record at all of the case or identities of the Respondent or the respondent’s witnesses[26]For such an extensive derogation from the fundamental principles of open justice, clear cogent evidence is needed.[27]The evidence provided is that contained in the Claimant’s application and the supporting statement and letter from his Clinical Psychologist that: “publication of his medical information in any form attributable to him will affect him both personally and professionally and cause him significant psychological distress and undermine his social and professional confidence” Mr Malik’s skeleton argument expressly refers to this extract of the letter. Is an order necessary(a) in the interests of justice;(b) in order to protect the Convention rights of any person; and / or(c) in the circumstances identified in section 10A of the Employment Tribunals Act?[28]I have set out the Claimant’s evidence above. I consider that public disclosure without restriction of the medical information in the proceedings would entail an interference with the Claimant’s Article 8 Rights. His concerns over the disclosure of his medical conditions are real and genuine and his Article 8 rights are engaged. As such, should such an order be made, giving full weight to the principle of open justice and to the Convention right to freedom of expression?[29]I do however have to balance the Claimant’s rights with the fundamental principle of open justice and see whether the derogations sought by him are strictly necessary, and proportionate for the proper administration of justice or to achieve its purpose[30]This is a fact and context sensitive matter. Here the application for privacy was made when the Respondent did not accept the Claimant was disabled and so it was inevitable that the Claimants medical information would be disclosed and discussed in tribunal at a public hearing.[31]However, by the time of determining the application the issues in dispute were much narrower as the Respondent accepted the Claimant was disabled within the statutory definition and so evidence on the Claimant’s medical conditions would not be much more limited, if necessary at all,[32]Further, the complaints brought by the Claimant focused to a large degree on matters consequential to the claimant begin disabled: namely:(a) under s15, what is the thing that arose from that disability and was he treated unfavourably because of that thing, and not the disability itself, and,(b) for the Reasonable adjustments claims, what the Respondent could or should have done to reduce any substantial disadvantage suffered by the Claimant because of the disabilities.[33]There is, it appears to me, therefor much more limited circumstance where “medical information” would need to be heard by the tribunal: predominately, if not exclusively, in the area of whether the Claimant suffered a substantial disadvantage from his disabilities, or what arose from those disabilities. Both of these are clearly identified in the CMO of Employment Judge Burns and so the ambit of the evidence required and the dispute is clear, and well defined[34]Considering the scope of the issues in dispute and the evidence I have before me, I find that the application made by the Claimant is excessive to meet the protection the Claimant requires regarding his medical information in this case, and goes well beyond what is strictly necessary to meet the protection his convention rights require when balanced with the important principles of open justice.[35]The restrictions as sought by the claimant in his application are not, therefore, proportionate in the circumstances: the scope of the evidence being so limited the anonymisation of the claimant or the Respondent and its witnesses is not necessary. As such, should any less restrictive order be made, giving full weight to the principle of open justice and to the Claimant’s convention rights?[36]It appears to me, however, that it is necessary and proportionate to protect the Claimant’s convention rights, whilst achieving open justice, by requiring that any evidence concerning the impact of the Claimant’s disabilities, if the issue is still controversial, should be heard in private, with the rest of the hearing in being conducted in public. Both parties are represented and I understand that is expected to continue to the Final hearing so the evidence can be clearly be identified in advance and managed accordingly. This I consider will ensure the Claimant’s medical information is not made public, in circumstances where public access to the tribunal is maintained.[37]As far as the publication of the judgment on the public register is concerned, it is clear from the Case Management Order that oral judgment will be provided within the time allocated and remedy dealt with at the time of the Final hearing. The potential for a full written judgement will, hopefully, therefore be limited, as parties’ representatives will have an obligation to note the judgment. However, if there were to be a request for written reasons any application under r50 and its application to those reasons should be addressed then, when the extent of the evidence heard and the necessity to refer to it in those reasons, can be properly considered.