F v G (Practice and Procedure : Restricted Reporting Order) [2011] UKEAT 0042_11_2109

EAT
F v G (Practice and Procedure : Restricted Reporting Order)
[2011] UKEAT 0042_11_2109 · 2011-09-21
[1]This is an appeal against the decision of Employment Judge Dean to make what she described as a permanent anonymity order, purportedly pursuant to rule 49 of the Employment Tribunal Rules of Procedure , in relation to proceedings then pending before the Birmingham Employment Tribunal.[2]Both before the Tribunal and before me the Appellant was represented by a friend, Mr Christopher Law, and the Respondent was represented by Mr Gary Morton of counsel. When the appeal was first lodged I considered whether it was necessary to seek the assistance of an amicus but decided against it. In hindsight, such assistance would indeed have been useful; but the need to ponder the difficult issues to which the appeal gives rise must excuse the time that it has taken me to promulgate this judgment. THE CLAIMS AND THE PROCEDURAL HISTORY[3]The Respondent is a College of Further Education with special facilities for disabled students. Some of the students are severely physically disabled, and of those some 120 – aged between 16 and 25 – are resident at the College. There was some uncertainty at the hearing before me as to its formal status. I asked for further information on this aspect to be supplied following the hearing. A Note from the College’s solicitors (to whose contents Mr Law made no objection) tells me that its governance is in the hands of a Board of Governors operating under an “Instrument and Articles of Government” in the form prescribed by the Further and Higher Education Act 1992 ; and that the majority of its funding comes from the Department of Education via the Young Peoples Learning Agency. [1][4]The Appellant worked at the College as a “care enabler” from 2002-2004 and again from 2005 until her resignation in 2009. Her duties included the washing of students, both male and female, who were unable to wash themselves, including washing their private parts. The College employs some 140 care staff.[5]In 2008, following a recommendation from the Commission for Social Care Inspection, the College introduced a formal Relationships and Sexuality Policy relating to its students (“the Policy”). (It is said by Mr Law that the Policy was implemented in advance of its formal approval by the Governors, but nothing turns on that for present purposes.) One of the elements of the Policy was a recognition that disabled male students [2] who were physically unable to masturbate should be entitled to some assistance in doing so. The details of the assistance given do not matter, but I should make it quite clear that there is no question of any member of staff themselves masturbating students or being present while masturbation took place: it was a matter of helping to apply an appropriate aid and to take it off afterwards. When I use the phrase “assisted masturbation” in this Judgment, that is what is meant by it. It was a fundamental principle of the Policy that no staff member would be required to give this assistance: it was only provided on a voluntary basis. It appears that the service was only required by a very few students and only infrequently.[6]The Appellant’s core complaint is that she was on two occasions asked to perform her normal duty of washing a male student very shortly after assisted masturbation had taken place. Although he should have been helped to clean himself immediately after the event by the volunteer who had been assisting, she nevertheless felt that being involved in washing him so soon after masturbation associated her in the act, and she found it repugnant. After various internal processes, of which I need not give the details, she resigned. Through part at least of those processes she was assisted by Mr Law. I have to say that the tone of his correspondence in her support, which has been extensive, did not do justice to the evident sensitivity of the issues: for example, most inappropriately, he described staff who had volunteered to assist students in the limited way to which I have referred as “sex workers”.[7]In the two complaints which she made to the Tribunal, which were in due course consolidated, the Appellant complained that the requirement to wash the student in the circumstances in question constituted unlawful harassment contrary to section 3A of the Sex Discrimination Act 1975 and also that it constituted direct discrimination under the Act. She claimed that in the circumstances she had been entitled to resign and thus that she had been unfairly dismissed. There was also a complaint of religious discrimination, but that was not proceeded with.[8]At a case management discussion on 26 November 2009 Employment Judge Saunby made a restricted reporting order (an “RRO”) under rule 50 of the Rules, prohibiting the reporting of any matter likely to lead to the identification of “the students of [F] College”. However, at a CMD on 14 May 2010 Mr Law said that the Appellant “objected in strong terms to any [RRO] being imposed in this case”. Employment Judge Tucker made a temporary RRO in both cases which prohibited the reporting of matters likely to lead to the identification of not only the students but the College itself and the Appellant. (The order also directed that the case should be referred to as “FvG”: that direction in fact went beyond what could be done under rule 50, but that error was put right subsequently - see below.)[9]On 25 May 2010 Employment Judge Hughes held a PHR to determine whether Judge Tucker’s order should be made full as opposed to temporary. By that stage the Appellant had accepted that the names of individual students should not be reported. Judge Hughes modified the order so that it reverted to prohibiting only the identification of “the students of [G] College ”. That does not appear to have been because she was persuaded that an order in wider terms could not be justified: rather, she believed (indeed, it appears to have been common ground before her) that there was no power to name the College itself in the RRO. With respect, this was not quite right: as I explain below (see in particular para. 38), whether or not the College was a person whose identity attracted protection in its own right, it would have been open to the Judge explicitly to prohibit its identification as “identifying matter” that would lead to the identification of a protected person. The order as drafted is arguably ambiguous, since it is not entirely clear whether it was intended to prevent the identification of the students as a group or only of particular individuals; but if the former was intended, it did not in fact matter that the identification of the College was not expressly prohibited, since naming it would necessarily identify the students. (The truth is that neither the parties nor the Judge appears to have had a good grasp of the effect of the relevant rules – which is forgivable, since, as appears below, they are far from straightforward.) As for t he direction that the case be referred to as “FvG”, this was tacitly revoked, but the Judge drew the College’s attention to its right to apply for what she described as “an anonymity order as provided for in such cases as X v Stevens ”. Such an application was duly made, and it was that which led to the hearing before Judge Dean and the order now appealed from.[10]The application for a permanent anonymity order was argued at a pre-hearing review on 16 November 2010, and the Judgment and Reasons were sent to the parties on 26 January 2011. The order reads:
“The judgment of the Tribunal is that: 1. That a permanent anonymity order is made that the tribunal, the Employment Judge and the Secretary omit from the Register and from any Judgment, document or record of the proceedings, the identifying matters including the names of the respondent and the claimant and the students and staff of the respondent which are likely to lead members of the public to identify any persons affected by or making an allegation of the commission of a sexual offence. I make this order under Rule 49 which stands alongside the Restricted Reporting Order which is in place in accordance with Rule 50. 2. This case shall revert to being described on the Employment Tribunal register as FvG.”
[11]The issue of liability in the substantive case has now been determined. Following a hearing in February 2011 (at which the parties were again represented by Mr Law and Mr Morton) the Appellant’s claims were upheld. The Judgment and Reasons were sent to the parties on 11 April. In accordance with the order of Judge Dean the Judgment and Reasons were anonymised – the parties were referred to as “F” and “G” respectively; staff were referred to by initials; and the student who featured in the Appellant’s complaint was referred to as “X”. The essence of the Tribunal’s decision was that it accepted that it was wrong to expect the Appellant to assist in washing students so soon after they had masturbated and that her concerns about this had not been properly addressed. However, at para. 68 of the Reasons the Tribunal said this:
“We should say that, by this decision, we are not coming to any judgment as to the legitimacy or propriety of the respondent’s Relationship and Sexuality policy, and we do not endorse Mr Law’s expressed views or description of those willing to assist students in this way. This judgment is based only on the treatment of the claimant in the circumstances of this case, including her known concerns, the failure to deal with them, the different treatment of men, and that she was assured that assisting students under the policy was purely voluntary and that she would not need to be involved in any way.”
An appeal to this Tribunal was rejected under rule 3 of the Employment Appeal Tribunal Rules 1993 (as amended). THE POWER TO MAKE ANONYMITY ORDERS 12. Inconveniently, neither rule 49 – being the rule under which the Judge purported to act – nor rule 50 can be understood without reference to the terms of the statute containing the rule-making power: key terms used in the former are only defined in the latter. Section 11 (1) of the Employment Tribunals Act 1996 reads as follows:
“Employment tribunal procedure regulations may include provision— (a) for cases involving allegations of the commission of sexual offences, for securing that the registration or other making available of documents or decisions shall be so effected as to prevent the identification of any person affected by or making the allegation, and provision— (b) for cases involving allegations of sexual misconduct, enabling an employment tribunal, on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal.”
Rule 49 is made under head (a); while head (b) is the basis for rule 50, which gives the tribunal the power to make RROs. [3] Sub-sections (2)-(5) provide for breach of an RRO to constitute a criminal offence. Sub-section (6) contains definitions. The relevant definitions are as follows:
“In this section— “identifying matter”, in relation to a person, means any matter likely to lead members of the public to identify him as a person affected by, or as the person making, the allegation, … ‘restricted reporting order’ means an order— (a) made in exercise of a power conferred by regulations made by virtue of this section, and (b) prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain ‘sexual misconduct’ means the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed, ‘sexual offence’ means any offence to which section 4 of the Sexual Offences (Amendment) Act 1976, the Sexual Offences (Amendment) Act 1992 or section 274(2) of the Criminal Procedure (Scotland) Act 1995 applies (offences under the Sexual Offences Act 1956, Part I of the Criminal Law (Consolidation) (Scotland) Act 1995 and certain other enactments), …”. 13. I should also note that the Disability Discrimination Act 1995 confers a power to make rules allowing tribunals to make RROs in the case of claims under that Act where “evidence of a personal nature is likely to be heard”. 14. Turning to the rules made in accordance with those provisions, rule 49 reads as follows: “49 Sexual offences and the Register In any proceedings appearing to involve allegations of the commission of a sexual offence the tribunal, the Employment Judge or the Secretary shall omit from the Register, or delete from the Register or any judgment, document or record of the proceedings, which is available to the public, any identifying matter which is likely to lead members of the public to identify any person affected by or making such an allegation.”
Although the title refers to “the Register”, the most important aspect of rule 49 is in its application to the Judgment and any written Reasons of the tribunal, which would otherwise be public documents; and I will refer to “the Judgment” as a shorthand for all aspects of the tribunal’s record that may require anonymisation. In cases where the rule applies, the removal of identifying matter is typically achieved by identifying the protected persons only by initials: I will refer to this, and any other step taken to prevent identification of the protected persons, as “anonymisation”. 15. I need not set out rule 50 in full, since the orders made under it are not in issue on this appeal and it is only indirectly relevant. Paragraph (1) is the principal operative provision and reads as follows:
“A restricted reporting order may be made in the following types of proceedings: (a) any case which involves allegations of sexual misconduct; (b) a complaint under section 17A or 25 (8) of the Disability Discrimination Act in which evidence of a personal nature is likely to be heard by the tribunal or a chairman.”
I should also set out the terms of paragraph (8), which reads:
“ Where a tribunal or employment judge makes a restricted reporting order– (a) it shall specify in the order the persons who may not be identified; (b) a full order shall remain in force until both liability and remedy have been determined in the proceedings unless it is revoked earlier; (c) the secretary shall ensure that notice of the fact that a restricted reporting order has been made in relation to those proceedings is displayed on the notice board of the employment tribunal with any list of the proceedings taking place before the employment tribunal and on the door of the room in which the proceedings affected by the order are taking place.” 16. Despite their shared statutory origin and the partial overlap in their language, rules 49 and 50 as drafted do different jobs and are different in how they work. In particular: (1) The power conferred by rule 50 is a power to make orders imposing obligations – specifically, the obligation not to publish identifying matter. By contrast, rule 49 does not confer a power to impose any obligations as such: it simply prescribes what should or should not appear in the tribunal’s own record. Strictly speaking, indeed, it involves the making of no order at all, and the phrase “register deletion order” found in the authorities is a misnomer. (That does not of course mean that it may not give rise to issues requiring judicial decision: if the parties disagree about whether the requirement for anonymisation is met, or about the details of what constitutes identifying matter, the tribunal will have to make a ruling.) [4] (2) For that reason, the criminal sanctions created by section 11 (2)-(5) relate only to breaches of RROs: there are no “rule 49 orders” that may be breached. (3) Rule 49 applies only in a narrower class of case than rule 50 – i.e. cases involving allegations of the commission of a sexual offence, as opposed to cases involving allegations of “sexual misconduct” (and claims under the 1995 Act). (4) Rule 50 confers a discretion on tribunals. By contrast, where rule 49 applies it is mandatory. (5) Orders made under rule 50 cease to have effect at, at latest, the conclusion of the proceedings to which they relate: see paragraph (8) (b). By contrast, in the cases where rule 49 applies its effect is permanent. 17. Those differences reflect what appears to be a fundamental difference between the purposes of rules 49 and 50. In fact, in the case of neither is there any authoritative statement of what the legislative purpose was, and I was not taken to the legislative history. However, in the case of an RRO under rule 50 it can be inferred from the terms of the rule itself that its aim is to allow the tribunal to protect parties, and indeed witnesses, from intrusive publicity which may affect the administration of justice so long (but only so long) as proceedings are pending: see the discussion in Tradition Securities and Futures SA v. Times Newspapers Ltd [2009] IRLR 354 , at para. 5 (p. 356). It does not appear to be designed to protect personal or confidential information as such: if it were, orders made under it would not automatically lapse when the proceedings were concluded. As regards the purpose of rule 49, its restriction to cases involving allegations of sexual offences suggests that it is intended to prevent questions of criminal liability in this peculiarly sensitive field appearing to be determined in civil proceedings; but beyond that, the detailed thinking is unclear. 18. The difference in purpose and effect between the two rules may give rise to some difficulties as to how they inter-relate. In Vatish v Crown Prosecution Service (UKEAT/0164/11)) an employment tribunal hearing a case involving an allegation of a sexual offence (namely that a colleague had touched the claimant’s bottom) felt obliged to make an order under rule 49 and believed that it followed that it should also make an RRO. This Tribunal held, though the point was not fully discussed, that that was not necessarily the case. It seemed plain that on general principles an RRO was not justified on the facts of the case, so that reporting of the alleged offence was possible (and had indeed occurred); but it is apparently anomalous that the Judgment had nevertheless to be anonymised. However, these difficulties may to a considerable extent be academic in view of the developments to which I refer below, which have rendered the law in this field a good deal more flexible. 19. Although it is necessary for the purpose of the issues on this appeal to understand the limits of rule 49, and indirectly also rule 50, as I have summarised them above, it is essential to appreciate that the law in this area has moved on. In a series of cases this Tribunal has held that the employment tribunal has power to take steps, both in the form of orders and by anonymisation of its own record, to protect the identities of parties and others in circumstances, and in ways, which go beyond the terms of those rules. I should refer to two authorities in particular. 20. The first is the decision of this Tribunal (Burton P presiding) in X v Commissioner of Police of the Metropolis [2003] ICR 1031 (which is the case referred to by Judge Hughes as X v Stevens – see para. 9 above). It concerned a claim of sex discrimination brought by a transsexual, who said that she would be deterred from pursuing her claim if her identity were not concealed. There was an issue as to whether the claim involved allegations of the commission of a sexual offence and/or sexual misconduct, so as to attract the operation of rules 49 and/or 50, and it was in fact held that it did. However, importantly, this Tribunal went on to hold, by way of alternative ratio, that even if no such allegations had been involved the employment tribunal had the power to make an appropriate order and/or take appropriate steps to anonymise the record. Burton P relied on the “principle of effectiveness” under EU law (which applied to the claim since it was a claim of sex discrimination) and held that the general power conferred on the tribunal to regulate its procedures – rule 15 (1) of the 2001 Rules then in force – could be read as giving it the necessary powers: see paras. 41-52 (pp. 1044-8), esp. para. 47 (p. 1046). In such a case, as he made clear, the language and detailed provisions of rules 49 and 50 could provide a useful starting-point or analogy for the kind of order to be made (including such procedural requirements as notice of applications for orders and appropriate notice of the restrictions imposed (cf. rule 50 (8) (c)); but the tribunal was free, so far as was necessary to comply with its obligations as a matter of EU law, to make orders in circumstances in which those rules would not apply and in terms for which they did not provide. The current Rules confer a similar general power on the tribunal to regulate its procedures, though it is not quite identically expressed: see rule 10 (1). 21. The second case is the decision, also of this Tribunal (myself presiding), in AvB [2010] ICR 849 – see specifically the supplementary judgment starting at p. 872. This was a case involving an allegation of the commission of a sexual offence which had resulted in the anonymisation of the judgment of the employment tribunal under rule 49 but where, as a result of a drafting quirk, the apparently equivalent rule in this Tribunal (rule 23 (2) of the Employment Appeal Tribunal Rules 1993 ) did not appear to permit the anonymisation of our own judgment. We resolved that anomaly by extending the reasoning in X to cover cases where anonymisation was necessary in order to protect the rights of a claimant under article 8 of the European Convention of Human Rights . [5] Although AvB was concerned with the powers of this Tribunal, the reasoning would apply equally to the powers of the employment tribunal. The reasoning would also apply to cases where the article 8 rights of persons other than the claimant – or indeed the parties – were potentially infringed. 22. Neither party before me has sought to challenge the correctness of the decision in X or of the extension of its reasoning in AvB . The extent of the change effected – or, rather, recognised – by those decisions is not always sufficiently appreciated. It means that in a case where anonymisation or restricted reporting orders are sought in order to protect article 8 rights, which will in practice cover most cases caught by rules 49 and 50, the tribunal’s powers do not have to be derived from those rules. On the contrary, it has wide powers to take the appropriate steps, unconstrained by their specific terms. However, it does not follow that rules 49 and 50 can simply be put to one side. For one thing, there may be cases, albeit untypical, where protection of identity is sought but Convention (or EU-derived) rights are not in play. There may also be complications about the applicability of the criminal sanctions provided for by section 11 of the 1996 Act in the case of an order which was not made under rule 50 but only under the more general procedural rules relied on in X . In any event, as Burton P indicated in X , even in a case falling outside the scope of rules 49 and 50 they remain valuable as a source of terminology (e.g. the useful concept of “identifying matter”) and as regards questions of ancillary procedure (e.g. notice, the power to make temporary orders etc). Further, many of the observations in the case-law, for example about how such orders should be framed and formulated, will remain apposite. 23. Of course, the fact that publication of identifying matter may affect a person’s article 8 rights is not necessarily sufficient to justify the making of an order for the anonymisation of the record. It is essential that in every case appropriate weight is given to the interests protected by article 10 of the Convention and to the principle of open justice, which of course exists quite independently of the Convention but also forms an aspect of article 6. Authoritative guidance as to the basic approach in such cases was given by the Supreme Court in In re Guardian News and Media Ltd [2010] 2 AC 697 (which was followed in A v B ). Lord Rodger, who delivered the judgment of the Court, pointed out at para. 35 (pp. 716-7) that anonymisation, of its nature, involves an interference with the right of the press (and others) under article 10 of the Convention to report judicial proceedings; and that accordingly in cases where it was sought it was necessary for courts to hold the balance between these competing rights – see in particular para. 43 (p. 718). A recent re-assertion of the importance of the principle of open justice is to be found in the judgment of Tugendhat J. in Gray v UVW [2010] EWHC 2367 , which succinctly states the relevant principles (see paras. 1-9). 24. It may be useful to tribunals in other cases if I conclude this section by seeking to summarise the current position as I have analysed it above. It is a pity that the situation should be so complicated, and I cannot give comprehensive guidance in an area which is still developing; but tribunals will not normally go wrong if they proceed as follows. (a) As a preliminary, consideration needs to be given to whether rule 49 applies. If it does, anonymisation is mandatory. [6] (b) Subject to that, the best starting-point is to consider whether restrictions on reporting and/or anonymisation of the record are required in order to protect the rights of a party or other affected person under article 8 [7] , paying full regard to the importance of open justice (see para. 23 above); and, if so, to consider the extent of the necessary measures. It will be necessary to consider not only what restrictions are proportionate but for how long they need remain in place: permanent protection may or may not be appropriate. (c) If such protection is indeed required: (i) If the necessary measures can be taken in the exercise of the powers under rule 49 or 50, they should be. (Indeed, as regards rule 49, this stage will already have been passed – see (a) above.) (ii) If, however, one or both of those rules has no application – say, because there is no allegation of the commission of a sexual offence or of sexual misconduct nor any (in short) disability issue – the necessary measures, whether by way of an RRO [8] or by way of anonymisation, should be taken in the exercise of the general powers of the tribunal under (now) rule 10, in accordance with the reasoning in X and AvB . (In the case of an RRO the fact that the order is being made under these wider powers may not make much difference to the actual format of the order, since, as pointed out above, the standard format of an order under rule 50 can still usefully be taken as a template.) (iii) There may be cases which fall within the scope of rule 50 but where the relief available under that rule is too limited – e.g. if restriction of reporting is required beyond the end of the proceedings. In such a case the Tribunal should, in case any tricky issues arise subsequently, make clear what it is doing under rule 50 and what extra it is doing under the wider powers recognised in X and AvB . (d) If there is no entitlement to protection under Convention rights, then of course the issue falls to be dealt with purely under rules 49 or 50 as the case may be. (e) Except in cases where rule 49 applies in accordance with its terms, the question whether the record of the tribunal needs to be anonymised need not necessarily be decided once and for all at the start of the proceedings. There is no reason why, in an appropriate case, a Judge may not direct interim anonymisation, with a final decision being taken only at the point when the Judgment is delivered and when the Tribunal will be best placed to assess all relevant factors. I acknowledge that this guidance does not address some difficult questions that may arise; but I ought not to attempt to resolve issues which do not fall for decision on this appeal and have not been argued before me. 25. I should make one other point about the removal of identifying matter from the tribunal’s record, whether specifically pursuant to rule 49 or in the exercise of the wider powers discussed above. As already noted, anonymisation of the record is on its face no more than that: it simply determines what appears in the public Judgment. It does not as such prevent the parties or others from publishing information derived from the hearing even if that might enable third parties to get behind the cloak of anonymity in the Judgment itself. I heard no argument about whether such conduct might nevertheless on some basis be unlawful; but it seems to me desirable that if such publication is to be restrained beyond the life of the proceedings it should be by an explicit order, in effect an extended RRO, so that everyone knows where they stand. THE JUDGE’S REASONS 26. Paras. 1-6 of the Reasons outline the facts and the procedural history. These are already sufficiently summarised above. 27. Para. 7 of the Reasons identifies the evidence which the Judge heard. This consisted of evidence from the Principal of the College, who was cross-examined by Mr Law, and a bundle of documents relating to the Policy generally and the Appellant’s case in particular. That evidence is briefly summarised at paras. 8-9 of the Reasons. The parties were agreed that I ought to have before me a fuller account of the Principal’s evidence than appears in the Reasons. I have accordingly been shown her witness statement, and Mr Morton also read out to me his notes of Mr Law’s cross-examination of her, which he accepted were substantially accurate. I need not reproduce them in full here. The main point which Mr Law pursued in his cross-examination was that the College received public funding and that the Policy was a public document. He also asked the Principal why the College needed a permanent anonymity order. She replied “to protect individuals”
. She said that her concern was “the need to protect everyone from the very damaging references which have been made”. 28.

The Judge at para. 9 noted that one aspect of the College’s case was that:

“... the manner of the way in which Mr Law on behalf of the claimant has chosen to court publicity for [G’s] claim has caused the Respondents concern such that, regardless of the outcome of the case, they fear that the damage which may be done to the reputation of the College and to the privacy of students and staff former current and future at the College is irreparable ...”
. At para. 10 she says:
“Much of the correspondence to which I have been referred by Mr Morton has been generated by Mr Law as a lay representative on behalf of the claimant and refers, the respondent says wrongfully, to an allegation that staff at the College were assisting students with masturbation and care enablers who provide on a voluntary basis the assistance referred to in the Policy are described by Mr Law as “sex volunteers” and Mr Law has asserted that the College, led by ... the Principal are involved in the act of sexual misconduct and the claimant has alleged that a sexual offence has been committed. The respondents now seek a permanent Anonymity Order in the provisions of Rule 49 of the Employment Tribunal Rules as it would appear the claimant’s representative is seeking to give the case maximum publicity and that any evidence which identifies the respondent College or the claimant personally or any of the care workers who volunteered to provide care in accordance with the Policy or the students would inevitably lead to identification of the vulnerable and disabled young adults who, at the relevant time, were students at the College.” 29. Paras. 11-18 set out and summarise the effect of the extensive authorities to which the Judge was referred. I need not rehearse these here, but they included X , AvB and In re Guardian News and Media Ltd . 30. Paras. 19-22 contain the Judge’s conclusion and reasoning. They read as follows: “19. In light of the findings of fact that I have made whilst the press may have an interest in the subject of the Respondent’s Policy and the certain elements of the public, as demonstrated by Mr Law who would seem to have not only acted on behalf of the claimant but as a concerned citizen of [...] may demonstrate such that interest in the Policy and its origins and its practical effect may be of interest to many members of the public. The claimant’s case that she has been constructively and unfairly dismissed and subject to unlawful discrimination on the grounds of her sex does not it seems to me raise issues of public interest in the wider sense. It is an individual employment claim. 20. I am required, as I do, to balance the interests of freedom of the press if they were to make an application and the right of a claimant to argue publicly that she has been treated unfairly or discriminated against by her former employer against which I must weigh the damage that may be done to the vulnerable members of society, in particular the students of the College at the relevant time and the individual members who are referred to during the course of the claimant’s complaint as well as the members of the staff who of the respondent College who participated in enabling the students under the terms of the policy. 21. The students it is accepted by the claimant are disabled and amongst the most vulnerable in society. The issue and the nature of the allegations the claimant makes would inevitably mean that to a greater or lesser extent, the Employment Tribunal will hear evidence in writing and orally at the Hearing, that is evidence of a personal nature and a most intimate personal nature about the needs and activities of the students. The claimant’s case as Mr Law seeks to put it alleges the commission of a sexual offence by the care enablers towards vulnerable young adults and/or by the students towards the volunteers and staff and on balance I consider the infringement of the Article 8 rights of the students and the care enablers and other volunteer members of staff who provided assistance and guidance in accordance with the Policy, would it is self-evident be an infringement of their Article 8 rights to a private and family life. 22. I am led to the conclusion that the nature of the respondent College is such that identification of the College, the claimant, students or the claimant’s colleagues and individuals who volunteered to assist under the terms or any of them, would inevitably lead to the identification of any of the other person affected by the allegation and in the circumstances I consider this is a case in which it is appropriate to order that ... [and she then goes on to set out the terms of the order quoted above]. I make the order under Rule 49 which stands alongside the Restricted Reporting Order which is in place in accordance with Rule 50.” (I have reproduced that passage exactly as it appears in the Reasons. At some points the detailed wording and, even more, the punctuation seem to have gone awry; but I have not thought it right to try to make corrections.) THE APPEAL 31. The Notice of Appeal was drafted by Mr Law, who is not a lawyer, and it will not be useful to start my analysis by setting out his grounds of appeal. I propose instead to consider the validity of the Judge’s reasoning generally; but I will so far as necessary refer to the particular points made by Mr Law in the course of doing so. 32. The Judge purported, as I have said, to make her order under rule 49. If she was to proceed on that basis it was necessary that it should have appeared to her that the proceedings involved an allegation of the commission of a sexual offence; and her Reasons, at para. 21, and the order itself do indeed refer to such an allegation. But the Reasons do not identify the allegation, or the sexual offence, in question: the nearest that they come is at para. 10, quoted at para. 28 above, but that is wholly unspecific. 33. I am bound to say that I can see nothing in any of the formulations of the Appellant’s case which have been drawn to my attention which constitutes or even implies an allegation of a sexual offence within the meaning of the rule (i.e. as defined at section 11 (6) of the 1996 Act). I accept that Mr Law’s correspondence, which is sometimes hyperbolically expressed, does in places use such language as that the Appellant was “coerced into a sexual act”; but nothing in her actual allegations supports that language. Indeed elsewhere in his correspondence he specifically disavows any such suggestion: in particular, he produced a letter from the local police force advising him that no offence had been committed. That seems right: it is hard to see how the acts of assistance rendered by the volunteers could possibly constitute any kind of sexual offence. Even if, as the Tribunal eventually found, the Appellant was wrongly asked to wash “student X” very shortly after he had masturbated, I cannot see what sexual offence that would have involved. Mr Morton suggested in argument that the facts alleged might involve “indecent assault” by the student or the member of staff assisting him, but I cannot see how that is even arguable. 34. That, however, is not the end of the matter. As explained at paras. 19-24 above, the Judge had the power to make an anonymity order to the extent necessary to protect the article 8 rights of the parties or, in principle, of any other person involved in the events in question – though any such order would not be being made under rule 49. The Judge did clearly consider article 8, and she explicitly refers at para. 20 of the Reasons to the balancing exercise discussed by Lord Rodger in In re Guardian News and Media Ltd . If she carried out that exercise properly, her order should be upheld despite the inappropriate reference to rule 49 and to the requirement that the case involve an allegation of the commission of a sexual offence. 35. In practice, therefore, the task for me on this appeal is to consider whether the Judge made a properly reasoned decision to the effect that the College had shown that publication of the Judgment without anonymisation would interfere with the article 8 rights of any affected person sufficiently to justify an interference with the principle of open justice and with the article 10 rights of the press, and others, freely to report the Tribunal’s conclusion and reasoning. 36. I should by way of formal preliminary set out the relevant terms of article 8.1, namely that “ everyone has the right to respect for his private ... life ”; but in truth the real content of that right is established in the interpretative jurisprudence which has developed over the years. I have already referred to the authorities which identify the balance that has to be struck between rights under article 8 and article 10; but, beyond that, citation of other cases is of limited value, since what is necessary is “an intense focus on the facts of the individual case” (as to this, see most recently per Gross LJ in Hutcheson v News Group Newspapers Ltd ( [2011] EWCA Civ 808 ), at para. 28). 37. The starting-point is to identify the persons whose article 8 rights potentially need protection. As to that: (1) I need not consider the position of the Appellant in this regard since she does not wish for anonymisation. (2) As for the College, Mr Law submitted that since it was a business it could not qualify for protection: see ground (6) in the Notice of Appeal. I need not consider in what circumstances a corporate body may enjoy article 8 rights, since the Judge clearly proceeded on the basis that the relevant rights were not those of the College itself but of its students and staff – see para. 20 of the Reasons; and Mr Morton did not contend otherwise. (3) The Tribunal plainly thought that the article 8 rights principally in play were those of the students. It is contended at ground (1) of the Notice of Appeal that those are irrelevant, since the students “are not witnesses, respondents or claimants”
. That is a bad point. If the publication of information about them in the Judgment would interfere with their article 8 rights, the Judge was obliged to consider whether such publication was justified. [9] (In fact, as appears below, in his oral submissions Mr Law tacitly abandoned the position that the rights of the students were irrelevant.) (4) The other class of person whose article 8 rights the Judge was concerned to protect were the staff. As in the case of the students, there is no reason in principle why the Judge should not have had regard to those rights. 38. I am therefore concerned only with the article 8 rights of (a) the students and (b) the staff. It does not, however, necessarily follow that it is only they whose names fall to be excluded from the Judgment. If the identification of either the Appellant or the College would lead to the identification of students or staff whose identity requires protection, that too may properly be prohibited: t o use the terminology of rules 49 and 50, the names of the Appellant and the College would be “identifying matter” – cf. the discussion in Tradition (above), at paras. 26 and 31 (pp. 359-360) . I understand the Judge to be making this point at the beginning of para. 22 of the Reasons: although it is not perhaps entirely clearly expressed, what I take her to be saying is that, if the College is identified, the students and staff who she believed required protection would in practice also be identified. The reasoning in relation to the anonymisation of the Appellant is rather less clear, but I infer that it is that if she were identified it would be easy to identify the College. ( I am a little doubtful whether that is really the case, but the point is not of central importance since what the Appellant clearly, and understandably, wants is the identification of herself and the College, as the two protagonists: having her own name revealed while that of the College remained withheld would mean little.) 39. I have no doubt that to identify an individual student as having received assistance to masturbate would be an interference with his rights under article 8. No authority is needed for the proposition that sexual behaviour is a central aspect of an individual’s private life. Further, I do not think that it is arguable that there is any public interest involved in the present case, whether under article 10 or otherwise, which could justify such an interference. It follows that the Judge’s order was plainly right in so far as it protected the identity of the individual student who featured in the Appellant’s case (“student X”). In fact Mr Law said in his oral submissions that the Appellant has no wish that student X be named – though it is not clear that this was his position below or indeed at the time that the Notice of Appeal was drafted. 40. Likewise, I believe that the fact that an individual member of staff has volunteered to assist students in this very sensitive and personal way should be regarded an aspect of his or her private life capable of protection under article 8. It may be unusual that an aspect of an individual’s working life should count as part of his “private life” under article 8; but in the circumstances of the present case I am satisfied that that is so. Nor, again, can I see any public interest which would justify the identification of those individuals. The position might be different (subject to the wider question of whether the identity of the College should be concealed) if their identities were central to the Appellant’s complaints. But that is not the case here. The Appellant’s real complaint, in so far as it related to individuals, concerned how she was treated in the aftermath of the assisted masturbation of student X; and it is immaterial to that issue which member or members of staff actually gave that assistance. 41. However, neither the protection of the identity of student X nor the protection of the identities of individual staff who had volunteered under the Policy would appear by themselves to justify withholding the names of the Appellant or the College; and it is this aspect which is the really difficult issue in the appeal. If the College were named, all that that would reveal was that one student out of a number had received assistance to masturbate and that at least one member of staff had volunteered to provide that assistance: there would be no way of identifying the particular individuals. In order – potentially – to justify an order preventing the College from being identified it would be necessary to identify some aspect of the article 8 rights of the male disabled students at the College generally, or of the care staff, that would be interfered with if they were identified as a group to whom assisted masturbation was available. 42. The Judge does not explicitly address this point. She simply refers at para. 20 of the Reasons to “the damage that may be done to ... the students of the College at the relevant time”. In my judgment her omission to give more explicit reasons for a finding of such central importance is a defect in her reasoning amounting to an error of law. However, the parties were agreed that if I found such an error I should not remit the question for reconsideration but should exercise my powers under section 35 of the 1996 Act and determine the issue myself; and I agree that I should do so. 43. The College’s primary case on this aspect did not appear from Mr Morton’s skeleton argument; but from a combination of his oral submissions and the Principal’s evidence before the Judge I think it can be summarised as follows. (1) If it were known that male disabled students at the College were offered assisted masturbation, that would be something in which many members of the public – and in particular those who came into contact with the students in question (most obviously their families and their fellow-students) – would take an interest, whether out of prurience or for some better motive. Some of those, however unfairly, would think the worse of students who availed themselves of assisted masturbation or would regard it as a matter for mockery. (2) Even if such hostility or ridicule were only rarely manifested, disabled students would know that the availability of assisted masturbation had become public knowledge and would know or suspect what the attitudes of (some) others towards it were. They would as a result feel humiliation and (in one sense of the word) shame. (3) The students in question were a small and fairly readily identifiable group. The Principal gave evidence that at the relevant time there were sixteen male resident students whose physical disabilities were such that they might be regarded as potentially requiring assistance to masturbate. (4) Publicising the existence of the Policy, with those results, would seriously affect the article 8 rights of the students in question. It is true that in their case (as opposed to that of a particular student) there is no straightforward disclosure of personal information about them as individuals. But their right to a “private life” has nevertheless been infringed by details of the intimate services available to them as a group being disclosed. That impairs their dignity and, in a broad sense, their reputations. The right to protection of an individual’s “honour and reputation” is now well-recognised as an aspect of the rights protected by article 8: see Lester Pannick and Herzberg: Human Rights Law , at para. 4.8.27, and cf. also AvB . The smaller and more specific the group – see (3) above – the greater the impact was likely to be:
“the disabled students at [G] College are offered assisted masturbation” is a far more intrusive statement than “disabled men in some residential care institutions in England and Wales are offered assisted masturbation”. (5) The same arguments apply in the case of the staff. The public would not in practice distinguish between those who volunteered to provide such a service and those who did not; and there would be a general, and humiliating, perception that any member of the caring staff might engage in a practice which many would regard – again, whether or not justifiably – as demeaning or distasteful. 44. These points were advanced primarily as a matter of common sense and common experience. But there was some evidential support for them in the Principal’s witness statement. At para. 22, although she makes a particular point about student X (which I consider at para. 45 below), she says in terms that “it would be extremely damaging for students and staff at the College generally” if the details of the case were to appear in the press. She observes that “sex and sexuality are emotive topics within our society, not least where provision is being considered for vulnerable groups”
. At para. 24, after pointing out the high levels of bullying and harassment encountered by disabled people, she says that:
“Any public discussion of disability and sexuality which identifies the College’s students is likely to cause distress and humiliation to them and their families.” (In context, I think it is clear that she is referring to identification of the students in question by identification of the College, rather than to individual identification.) As regards the staff she says, at para. 25: “The privacy and dignity of the 350 staff who work at the College is likely to be affected if this case is publicised.” 45. As noted above, the Principal also makes a particular point about student X, namely that, even if he were not himself identified in any public document, the publication in the press of a story which identified the College would mean that he would know, even if no-one else did, that his case was being discussed in the public domain. It was, I think, in this context that Mr Law asked her, according to Mr Morton’s note, whether that would really worry him. She replied that it would distress him, adding that “the way it could be presented publicly could be distressing”
. I was given to understand that student X is an intelligent young man, who would certainly be aware of the Appellant’s case and reports about it. 46. I have, therefore, to decide, first, whether the publication of the Judgment in a form which identifies the Appellant and, more significantly, the College, would give rise to a risk of injury to the article 8 rights of the students and staff of the College other than the individuals whose identity I have already held should be protected; and, secondly, whether that risk justifies the infringement of the principle of open justice inherent in anonymisation. 47. As to the first question, the risk relied on by the College is as a result of the press, on the basis of the Judgment, publishing the fact that the College offers assisted masturbation to disabled students. Mr Law disavows any intention on his part or the Appellant’s positively to seek such publicity and points out that he has only written about the Appellant’s case to responsible persons such as her MP, a local authority councillor and the police. The College evidently believed otherwise. The Judge reported its concerns at para. 9 of her Reasons. I have the impression that she gave weight to those concerns, and having seen Mr Law’s correspondence I can see why she may have done so: certainly he regards the availability of assisted masturbation to students at the College as a matter requiring public scrutiny. However, she made no express finding that Mr Law would seek to attract press interest, and I am prepared for the purpose of this appeal to accept what Mr Law says. But even in the absence of any positive courting of publicity, I believe there is a real risk that if the Judgment became public in unredacted form it would be reported, at least in the local press: the subject-matter is of a kind which would be likely to be regarded as newsworthy. 48. I further accept the Principal’s evidence as to the likely impact of such publication on the students, and specifically the group of male disabled students to whom she refers. In my judgment that impact would engage their article 8 rights in the way analysed at para. 43 above: I attach importance to the fact that the group of students in question is comparatively small. I also accept her evidence about the likely impact on student X himself. Having reached that point, it may not strictly be necessary that I should decide whether the article 8 rights of the care staff are engaged, and the position in relation to them is much more borderline; but on balance, though with some hesitation, I would make the same finding in their case also. 49. I turn, therefore, to the second question, namely whether the injury to the article 8 rights of the students and staff concerned outweighs the interests of open justice. I do not find that easy. As Tugendhat J. makes clear in Gray , the default position in English law is and should be that it is in the public interest that the full decisions of courts and tribunals, including the names of the parties, should be published. I need not elaborate the reasons for that view, which simply reflects what was has been said by numerous courts and tribunals ever since the decision of the House of Lords in Scott v Scott [1913] AC 417 , and indeed before. It is not a right specifically of the press but reflects the public interest generally. It applies irrespective of the subject-matter of the case. (I do not suppose that the Judge’s observation at para. 19 of the Reasons that this was “an individual employment claim” which did not “raise issues of public interest in the wider sense” meant that she believed that there was only a public interest in full publication in cases where the subject-matter of the claim itself happened to involve issues of general public importance [10] ; but I should make it clear that if that was what she meant, I cannot agree.) In addition to that public interest, weight must also be given to the Appellant’s wish for the Judgment to be published in a form which names herself and the College. It is entirely legitimate that someone who has had their rights vindicated after a hard-fought piece of litigation should wish to be able to report, and produce the evidence of, that victory without constraint. 50. Notwithstanding the weight to be attached to both the public and private interest in full publication of the Judgment, I have on balance come to the conclusion that permanent anonymisation is justified. My reasons are as follows. 51. So far as the public interest in full publication is concerned, important as it is, it is not an absolute. It is important to note that the present case does not, on the Employment Tribunal’s findings, involve egregious wrongdoing or raise issues of general public importance. Mr Law would contend otherwise: before me, as in his correspondence, he presents the treatment of the Appellant as positively heinous. But his more hyperbolic claims about the Policy and how it was applied were not upheld by the Tribunal. This was not a case about a care worker who was pressured to take part in assisted masturbation, which would indeed be a very serious matter. Rather, what happened consisted of particular mistakes by the College’s staff in the handling of a difficult situation. There is thus no specific reason for publication which would add weight to the general principle. It should also be borne in mind that the restriction on open justice is only partial: the hearing was in open court, and the facts and issues are fully set out in the Tribunal’s Reasons subject only to the anonymisation of the names of the parties and the omission of details which would identify them. 52. As to the Appellant’s wish for the Judgment to be published, that is to be respected. But the difficulty here is that the interests of third parties are involved. Her interest in seeing the Judgment published in full must be balanced against the interests of a group of highly vulnerable individuals who find themselves in a position where their privacy may be invaded by a dispute in which, importantly, they have no interest whatever. It is relevant in this connection that the Appellant chose to work as a care worker, and it is not unreasonable that she may have to accept some restriction, consequent on that choice, on what would otherwise be her rights. 53. I turn to consider the grounds pleaded in the Notice of Appeal in so far as I have not already addressed them. 54. Ground (2) is that “the students ... are protected by a Restricted Reporting Order which protects their privacy”. This contention is based on a misunderstanding of the effect of an RRO. Judge Hughes’s order was concerned with publication of information during the currency of the proceedings and will lapse at the conclusion of the proceedings (though see para. 61 below). The issue on this appeal is whether the identity of the relevant group of students (and thus necessarily also of the College) should, so far as the Tribunal’s record is concerned, be protected on a permanent basis. 55. Grounds (3) and (4) are more substantial. The Appellant asserts that the Policy is a “public document”, in the sense that any interested member of the public is entitled to see it. Accordingly, the fact that the College offers assisted masturbation to its disabled resident students is in the public domain, and it cannot be right to anonymise the Judgment in order to withhold such information. I understand that argument, and it would clearly not be right to anonymise the Judgment in a vain attempt to conceal the existence of a policy or practice which was already widely known. But the position is not as clear-cut as Mr Law presents it. I have not been able to establish, without fuller assistance than either he or Mr Morton was able to give me, whether a member of the public would indeed have the right, under the Freedom of Information Act or otherwise, to obtain and disseminate copies of the Policy. I suspect that the position may not be straightforward. But I do not believe that the issue depends on the answer to that question. I should be concerned with the reality of the position. Although the Policy must be quite widely known among management and staff at the College and to some students and perhaps their families, I would expect all those concerned to treat it as, at least in a broad sense, confidential; and there was no evidence that it was known outside those circles – indeed the clear implication of the Principal’s evidence is that it was not widely known. Restricted knowledge of this kind is very different from the widespread knowledge that could reasonably be feared following press publication. The effect of publication of the Judgment without anonymisation would be to put unequivocally into the public domain a fact – namely that the College offers assisted masturbation – which is not now generally known and which, as I have held, infringes the article 8 rights of students at the College. The nature and manner of publication of information relating to a person’s private life must be relevant to whether his rights under article 8 are infringed by the publication and if so whether such infringement can be justified. The availability of knowledge of the kind asserted by Mr Law is a very different matter from the kind of publicity which was the basis of the Principal’s concerns and, as I infer, the Judge’s reasoning. 56. Ground (7) is that a permanent anonymity order ought not to be made “to protect embarrassment”. Put that way, I agree. But in my view the Judge was entitled to find that there was a serious risk of the students and staff in question being subjected to an infringement of their right to a private life which went beyond mere embarrassment. 57. Ground (8) complains that at the hearing Mr Morton was allowed to address the Judge for over 3¾ hours whereas he was allowed only 10 minutes. In the College’s Answer Mr Morton disputes that assertion by reference to his contemporary notes. These show that the PHR lasted just under three hours (though another ¾ hour was spent on a CMD). They record the first hour or more being spent on “discussion”, followed by Mr Morton’s submissions on the anonymity order, lasting just under 25 minutes. After a short period of further discussion the Principal gave evidence: Mr Law is shown as having cross-examined her for half an hour and as then making submissions for a further period of just under half-an-hour. I accept that as an accurate summary. On that basis, Mr Law’s account is unreliable and he has nothing to complain about. Even if, which is unclear, the lion’s share of the preliminary “discussion” fell to Mr Morton, there is nothing wrong with that: he had to introduce the application and assist the Judge as to the relevant law, which it is evident that he did very fully. 58. Ground (9) raises a complaint which has been overtaken by events. Ground (10) makes an entirely general complaint that the Judge erred in law. CONCLUSION 59. For those reasons I dismiss the appeal. Although I have had to make this decision myself rather than rely on the exercise of discretion by the Judge I am reinforced in my conclusion by the fact that I have reached the same decision as her. I also wish to say that I have in trying to strike the right balance focused, as is particularly necessary in this field, closely on the facts of this case. These are unusual. Without wishing to limit the considerations referred to above, I, like the Judge, am particularly influenced by the facts that the students affected are highly vulnerable and that the risk to their article 8 rights has arisen in litigation between those responsible for their care in which they themselves have no interest. This judgment should certainly not be regarded as sanctioning anonymisation in any case where a party or witness may suffer embarrassment by publication of intimate details of their private lives. 60. For the same reasons as I have dismissed the appeal I make an order for the anonymisation of the record in this Tribunal. 61. There remains one important loose end. As I say above (see para. 16), an “order” under rule 49 is not, strictly speaking, an order at all and on its face does no more than determine what appears in the record. If it is sought to prevent the Appellant or others from nullifying the effect of anonymisation by publishing the withheld information from their own knowledge, that is best done by an explicit extended RRO: see para. 25 above. The RRO made by Employment Judge Hughes was a conventional order under rule 50 and accordingly will expire once remedy has been determined (see rule 50 (8) (b)). A remedy hearing is listed for November: if the College wishes for any further protection thereafter it will need to consider what form of order it requires, and any application will be most conveniently disposed of at that hearing (if time allows). One formula for consideration would be that following the expiry of the RRO made by Judge Hughes the Appellant should remain prohibited (by herself or any other person, including her representative) from taking any step to identify, or procure the identification of, the College, student X or any member of the staff of the College as being the persons referred to in the Tribunal’s Judgment; but the Tribunal will have to consider any representations that may be made by either party. I have considered whether I could save further argument by making the appropriate order myself, but I am not in a position fairly to do so. 62. I should also mention for completeness that Mr Law sought to introduce on the appeal a good deal of “fresh evidence”. Most of this consisted of materials relating to the merits of the substantive claim which were irrelevant to the issues which I have to decide. It also included a copy of the recent report of the Master of the Rolls’ Committee on “Super-Injunctions”, but in so far as that re-stated relevant principles the core authorities were of course already before me. [1] I should say that the final paragraph of the Note inappropriately advances further submissions on the issues raised by the appeal: I had not invited such submissions. But the points made are broadly in line with what had been canvassed at the hearing, so no harm is done. (Mr Law also sent me unsolicited further submissions following the hearing, without copying them to the College’s solicitors; but I have not taken account of them.) [2] The Policy applies in principle to female students, but their position is not relevant to the issues on the appeal. [3] The Rules form part of Regulations made under the Act – the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 : see Schedule 1. [4] I should acknowledge that in this respect, and indeed one or two others, my recent ex tempore judgment in Vatish (referred to below) was not wholly accurately expressed – though not in a way which affected the outcome. [5] This step had in fact already been taken in B & CvA [2010] IRLR 400 , but the analysis in AvB is fuller; and we had in B & C v A been taken only to rule 50 and not to rule 49. [6] Save that it may be argued in the circumstances of a particular case that anonymisation would be contrary to Convention rights, and in particular to articles 6 and/or 10. I express no view about whether in such a case rule 49 could be disapplied. [7] Or under EU law, as in X, or other articles of the Convention; but it is likely to be article 8 which is relied on in most cases. [8] There is no harm in continuing to use this familiar abbreviation as long as it is appreciated that it may apply to a wider order restricting the reporting of identifying matter made otherwise than in accordance with rule 50. [9] The order made in B & C v A (see n. 5 above) was in order to protect the article 8 rights of a third party who was not a witness. [10] I suspect that she was in fact echoing a similar observation in AvB : see at para. 13 of the supplementary judgment (p. 877G). But the point was being made there in the context of whether there was a justification for interfering with the claimant’s article 8 rights over and above the general presumption in favour of full publication.