H v MRS L R CURTIS PROSPECTS CARE SERVICES LTD [1999] UKEAT 774_99_0607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 774_99_0607Case No Appeal No. EAT/774/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HAPPELLANTMRS L R CURTIS PROSPECTS CARE SERVICES LTDRESPONDENT
Before
Mr Justice MorisonLord Davies of CoityDate 6 July 1999
[1]APPEARANCES For the Appellant MR A HILLIER (of Counsel) Messrs Clarke Willmott & Clarke Solicitors Blackbrook Gate Blackbrook Park Avenue Taunton, Somerset TA1 2PG For the Respondents NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS MR JUSTICE MORISON (PRESIDENT): This appeal has come on at very short notice. What happened was that on the first day of a hearing which was due to take place at an Industrial Tribunal at Exeter, an application was made on behalf of the Second Respondent, a named individual, that a restricted reporting order should be made. The Tribunal considered that application, and it is to their great credit that they found time to put into writing, extended reasons for their refusal to make such an order. We would like to pay tribute to the learned Chairman for the way in which he has dealt with this matter. There was an appeal against the refusal which has come before us this afternoon, and we have been invited to give a ruling on this appeal immediately so that the case can resume at Exeter. The nature of the complaint in this case is that the Applicant was being sexually harassed by the Second Respondent in the course of her employment. It is her case that she felt obliged, as a result of what happened over one weekend, to resign her employment, and there is a claim I believe, for unfair constructive dismissal as well as her complaint of unlawful discrimination on grounds of sex.[2]The allegations which she makes in this case are strenuously resisted by the Second Respondent who denies them. So much is plain from the witness statements which have been exchanged between the parties prior to this hearing which shows that the account given by each party differs in many material respects. It will therefore become necessary for the Employment Tribunal to determine where the truth lies. It is submitted to us by Mr Hillier with great skill that that investigation by the Employment Tribunal best takes place under the cover of a restricted reporting order which will enable the witnesses to give evidence about their side of the affair without the danger of being doorstepped by the press during the currency of the proceedings and without the named Respondent being at risk of having allegations, which are subsequently rejected by the Tribunal, being trailed across the newspapers so that his reputation is damaged even though ultimately he were to triumph on the facts.[3]It seems to us, that there are three reasons for the Employment Tribunal's decision which can be summarised in this way. Firstly, they define the purpose of the provisions for restricted reporting orders as "to enable complaints of sexual harassment at work to be brought and witnesses to give evidence about instances of sexual harassment without being deterred by fear of intimate sexual details about them being publicised". That is a quotation which is taken from paragraph 36 of the decision of the Divisional Court in Associated Newspapers Ltd v London (North) Industrial Tribunal , reported at (1998) IRLR p 569 and the passage in question at p 574.[4]The second ground that was given is that the Respondents had themselves repeatedly requested the Applicant to pursue her allegations in a public forum and even threatened defamation proceedings in the event that she failed to purse them. Thirdly, the Tribunal doubted whether the children, for whom the employer has care responsibilities, might well be affected by the publication of the evidence and their view was that those children were not persons affected by the allegations for the purposes of the legislation and therefore, as we understand it, that issue should not be taken into account. They indicated that they were invited by the decision in Associated Newspapers Ltd to take a narrow view of their discretion and that is what they decided to do.[5]On behalf of the Appellants Mr Hillier says that none of the three reasons given by the Employment Tribunal stands up to scrutiny. In the fist place, as regards the first reason, he drew attention to paragraph 27 of the Associated Newspapers Ltd decision, which contains an extract from the Hansard report of the debate leading to this statutory provision where Viscount Ullswater said:
"In conclusion I hope that all noble lords will agree with me that the new clauses offer valuable protection to the victims and witnesses to sexual harassment and indeed to anyone who is falsely accused of such harassment. The Government strongly condemn sexual harassment and hope that these new powers will make the process of bringing an Industrial Tribunal complaint involving such allegations less distressing, thereby encouraging those who would previously have been deterred from bringing such cases to do so."
[6]As we read that passage, which was cited by the Court in order to inform itself as to the purpose of these legislative provisions, the intention of Parliament was that both the victim's interests and the person against whom the allegations were being made, should be the subject of protection. The victim should be protected so that people in her shoes, assuming the victim to be female, will feel able to bring their complaints to an Employment Tribunal in confidence knowing that they will not be deterred from doing so by the doorstepping techniques that might occur in such situations. So far as concerns the person against whom the allegations were made, he or she should also be protected from false allegations of harassment by having their name preserved during the course of the evidence. But of course when the decision is published, the whole of the case will be set out and the reasons for its rejection, if rejected, set out at the same time.[7]Accordingly, says Mr Hillier, the citation from paragraph 36 of the judgment in that case is to be read against paragraph 27, which I have just cited, and shows the Employment Tribunal may have directed themselves as to the purpose of this statutory provision too narrowly.[8]The second reason that was given is, he says, at best only marginally relevant. It was true that the employers had taken the offensive in the sense of challenging the Applicant either to go to a Tribunal or to withdraw the allegations; otherwise she would be faced with defamation proceedings. It can fairly be said that in those circumstances, the employer and the Managing Director of the employer, must have taken the view that the damage done by publicity during such proceedings was not such as to deter them from taking that step. Accordingly, it could be said that it was somewhat inconsistent for the Applicant now to seek the protection of a restricted reporting order. But, says Mr Hillier, that does not indicate that they were giving up or seeking to abandon their rights to obtain a restricted reporting order should the proceedings be commenced in the Employment Tribunal.[9]As to the third reason, he respectfully submitted that in the short time available to it, the Tribunal had misread the statutory provision. The question was not whether the children were persons affected by the allegations for the purpose of the legislation, as it was put. Rather, that there was a wider interest in protecting the identity of the Second Respondent which affected the children. We do not consider that the question of the children's interests is really a relevant matter at all, because as we read the statements, there is going to be no need whatever to identify any of the children in this case. There was only one child who was potentially involved who was the child being taken to Jersey where it is alleged the harassment took place. But that child plainly does not need to be named.[10]But we have been persuaded by Mr Hillier that the Employment Tribunal has misdirected itself in law in relation to the way in which it viewed its discretion. It seems to us that the interests of the victim of the harassment need to be considered, just as the interest of the person against whom the allegations of harassment are being made. In that sense, it can properly be said on behalf of the Second Respondent, that his own interests have not been properly considered by the Employment Tribunal in arriving at their judgment.[11]We also think, that whilst we fully understand the argument that the employers have been saying that the dispute between the parties should be resolved in a public forum, and that one might then say that it did not lie in their minds to ask for a restricted reporting order, we have not been persuaded that that, at the end of the day, was a legitimate approach for them to have taken. It seems to us reasonably clear that there could be no question of an abandonment by the employers or by the Second Respondent of their right to apply for a restricted reporting order if the circumstances demanded it.[12]The press will be entitled, as we understand it, to publish the nature of the allegations which are being made and anything else which does not identify, or lead inevitably to the identification of the Second Respondent. That means, probably, although it would be a matter of judgment for the press, that they will not be able to identify the name of the employer because by so doing it may inevitably lead to the identification of the Second Respondent who was at the material time its Managing Director.[13]In those circumstances, we are prepared to allow the appeal and to grant a restricted reporting order, but before dealing with its terms I would wish to discuss with Mr Hillier how extensive this order should be.[14]I would like to add to my judgment this. That of course the restrictive reporting order applies and applies only until after the decision on liability has been promulgated by the Employment Tribunal. On promulgation, it will not be competent for the Employment Tribunal to omit the true names of the Second Respondent and First Respondent, and at that stage the press will be perfectly entitled to publish the names of all persons who have been involved in those proceedings.