Appeal No. UKEAT/0164/11/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 April 2011

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR P GAMMON MBE
MR P M SMITH

MRS A VATISH	APPELLANT

CROWN PROSECUTION SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JOE SYKES
(Representative)
Employment Law Centres
107 Fleet Street
London
EC4A 2AB	
For the Respondent	MR STEPHEN HEATH
(of Counsel)
Instructed by:
Messrs Simons Muirhead & Burton
8-9 Frith Street
London
W1D 3JB	

SUMMARY
PRACTICE AND PROCEDURE – Restricted reporting order

Tribunal wrong to make RRO in circumstances where no one had shown a sufficient need for protection from identification.

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) 

1.	This is an appeal from the decision of an Employment Tribunal sitting at London Central, chaired by Employment Judge Pearl, to make a restricted reporting order under rule 50 of the Employment Tribunal Rules of Procedure.  The Appellant is the Claimant in the proceedings before the Tribunal.  The appeal has been heard at very short notice, and only an hour was allocated to it so as to minimise the disruption to the proceedings in which the order was made.  As will appear, it is unopposed.  In those circumstances, we propose to give our decision and our reasons very shortly and on the most limited basis. 

2.	We should start by setting out the relevant provisions.  The starting point is section 11 of the Employment Tribunals Act 1996 which provides (so far as material) as follows:

“(1) 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.
(2) If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order - 
(a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,
(b) in the case of publication in any other form, the person publishing the matter, and
(c) in the case of matter included in a relevant programme - 
(i) any body corporate engaged in providing the service in which the programme is included, and
(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(3) – (5) ….
(6) 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,
“relevant programme” has the same meaning as in the Sexual Offences (Amendment) Act 1992,
“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 1 of the Criminal Law (Consolidation) (Scotland) Act 1995 and certain other enactments), and
“written publication” has the same meaning as in the Sexual Offences (Amendment) Act 1992.”

3.	The relevant rules made under section 11 are rules 49 and 50 of the Employment Tribunals Rules of Procedure, which read (so far as relevant) 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.
50 Restricted reporting orders
(1) A restricted reporting order may be made in the following types of proceedings:-
(a) any case which involves allegations of sexual misconduct;
(b) ...
(2) A party … may apply for a restricted reporting order (either temporary or full) in writing to the Employment Tribunal Office, or orally at a hearing, or the tribunal or Employment Judge may make the order on its or his own initiative without any application having been made.
(3) – (7) … 
(8) 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; and
(c) the Secretary shall ensure that a 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.
(9) ...
(10) A tribunal or Employment Judge may revoke a restricted reporting order at any time.
(11) ….”

4.	It will be seen that rules 49 and 50 do different things.  Rule 49, which applies in cases involving the allegation of a sexual offence, imposes a mandatory requirement for the permanent removal from the public record of the Tribunal of identifying matter.  Rule 50, which applies in cases of “sexual misconduct”, simply gives the Tribunal a discretion.  If it decides to make an order, that order will prevent the reporting of things said in the course of the Tribunal proceedings (which will of course be conducted in public) which may have the effect of identifying the alleged victim of the misconduct in question, or persons affected, but only so long as the proceedings are ongoing.  It is thus both broader and narrower than rule 49 - broader because it protects persons affected by allegations of sexual misconduct of any kind, and not only sexual offences, and narrower because the effect is not permanent: once the proceedings are over, the restriction disappears - though of course by that time public interest in the proceedings may well have diminished.  

5.	It is clear from its wording, but is in any event established by authority, that a restricted reporting order under rule 50 may be made to protect not only an alleged victim of sexual misconduct but also an alleged perpetrator and in some circumstances a witness: see R v London (North) Industrial Tribunal, ex parte Associated Newspapers Limited [1998] IRLR 569.

6.	The purpose of the protection given by rule 50 is discussed in the judgment of this Tribunal in Tradition Securities and Futures SA v Times Newspapers Limited [2009] IRLR 354, at paragraph 5.  In particular, there is some discussion of the purpose of protecting the identity of alleged perpetrators of sexual misconduct.  We there observed that in both Associated Newspapers and the earlier decision of this Tribunal in M v Vincent [1998] ICR 73 there is reference to the risk of witnesses - which would of course include alleged perpetrators - being put under “undue pressure” by the kind of peculiarly intense media coverage which often accompanies cases with a sexual element, and to the effect that that might have on the way in which they were able to give their evidence.

7.	It was also held in A v B [2010] ICR 849 that rules 49 and 50 could in an appropriate case be a vehicle for vindicating the article 8 rights of persons involved in proceedings in the Employment Tribunal: see the supplementary judgment at p. 872 ff.  It is well established that the provisions of these rules, and specifically of rule 50, have to be operated in a manner which infringes as little as possible the freedom of the press, which includes the freedom to report contemporaneously – see paragraph 4 of the judgment in Tradition.

8.	The factual and procedural background in the present case can be sufficiently summarised as follows.  The Claimant is a lawyer working for the CPS.  She claims that she was treated unfairly and offensively by her manager, Mr O’Connell, in a way which constituted discrimination on various grounds, including sex. The hearing of the claim commenced in January this year.  The Claimant gave evidence first.  Among the things that she said were that on two occasions Mr O’Connell touched her in circumstances which would constitute a sexual assault.  Those allegations were widely reported in the press, and photographs of both the Claimant and Mr O’Connell appeared.  On the sixth day of the hearing the Claimant said that a colleague, a Ms Wellington, had told her that Mr O’Connell had frequently pinched her - that is to say Ms Wellington’s - bottom.  Similar evidence about what Ms Wellington had said was given by a Ms Moise who gave evidence on the seventh day of the hearing, having attended pursuant to a witness order.  On the eighth day Ms Wellington was called by the Respondents to give rebuttal evidence.  She denied that she had ever been inappropriately touched by Mr O’Connell or that she had told anyone that she had been.  There was apparently some suggestion at the time that she came to give evidence that a restricted reporting order might be made, but it was not pursued.  On the final day of that tranche of the hearing, when the case was not complete, and it had to be adjourned part-heard, the Tribunal of its own motion raised the question of whether orders should now be made under rules 49 and/or 50.  The Claimant’s representative, Mr Sykes, did not oppose the making of an order under rule 49, but he did oppose the making of an order under rule 50.  The Respondent’s counsel, Mr Heath, supported the making of an order under both rules, and the Tribunal proceeded to take that course.  The order under rule 50 prevented the identification of the Claimant, Mr O’Connell, and Ms Wellington.  Mr Sykes asked for written Reasons, which were provided, with commendable promptitude, the next day.

9.	The Appellant appealed against the making of the order under rule 50.  The appeal was rejected by Judge McMullen QC on the sift.  It came before me under rule 3 (10) last Wednesday.  I directed this morning’s hearing.   Today is in fact the first day of the resumed hearing before the Tribunal.  On Friday the Respondents indicated that they did not propose to oppose the appeal, though Mr Heath would attend to assist this Tribunal.  He and Mr Sykes have both attended.  We formed a clear view on the basis of the papers before us, including Mr Sykes’ skeleton argument, that the appeal should be allowed, and in those circumstances we have not had to hear oral submissions from Mr Sykes or Mr Heath. 

10.	The Reasons given by the Tribunal are lengthy and cover a certain amount of ground with which we need not be concerned.  The actual reasoning underlying the making of the order appears at paragraph 22:

“There is now a need, in our view to protect the identity of the rebuttal witness who denies the allegations.  We understand from the adoption of the Tribunal’s concern that Mr Heath on behalf of Mr B effectively seeks to protect his position so far as being named in the press is concerned.  We, of course, understand that the Claimant is happy for the matter to continue to be reported.  However, in our view once the position in relation to sexual offences being alleged under rule 49 is now so clear, a restricted reporting order should be made under rule 50.  This is not because it follows as a matter of course but because the alleged sexual misconduct is sufficiently serious to warrant such an order being made.  In our view there is no analogy with cases in civil court where, for example material has been published outside the country and therefore the cat is out of the bag to use Mr Heath’s expression.  This is a case where whatever reporting has taken place, it has occurred against a different evidential background from that with which we are now faced.  In our view it is important having made the ruling in respect of rule 49 to also make a restricted reporting order to ensure that these wider and in many ways deeper allegations do not find their way into the press with the name of the individuals attached. […]”

11.	It appears from that passage that the Tribunal had regard to three factors - first, the need “to protect the identity of the rebuttal witness”, that is to say Ms Wellington; secondly, Mr O’Connell’s wish that his position be “protected [...] so far as being named in the press is concerned”; and thirdly, the fact that an order under rule 49 had been made.

12.	In our view the order made by the Tribunal was wrong in law and should not have been made.  It follows from what we have said earlier about the importance of open justice that a restricted reporting order should not be made unless it is necessary to do so in order to protect the interests of justice or perhaps some article 8 right of an affected person.  In the present case there are only three potential candidates for protection.  We take them in turn.

13.	First, the Claimant has made it clear that she does not wish for her identity to be protected, and in any event her evidence has now been given.  

14.	Secondly, Mr O’Connell might in principle have been entitled to protection under rule 50 on one of two bases - either (a) to prevent his being subjected to undue pressure during the giving of his evidence - which, unlike the evidence of the Claimant and Ms Wellington, is still to come; or (b), perhaps, to protect his article 8 rights.  As regards (a), he made no application at any stage on this basis.  A tribunal might, in theory, wish of its own motion to make an order protecting the interests of an exceptionally vulnerable witness, even where the witness did not seek it; but there is nothing to suggest that this is such a case, and in any event the Tribunal did not put it that way - that is to say, there is no suggestion that Mr O’Connell will be put under undue pressure by the fact that his evidence may be contemporaneously reported.  The most that the Tribunal say is that, once they raised the point, Mr Heath supported their suggestion that Mr O’Connell should not be “named in the press”.  As regards (b) - that is to say, damage to his privacy - even assuming that this is a relevant consideration, the damage has already been done: the allegations made by the Claimant have already been widely reported and are in the public domain.

15.	That leaves, thirdly, Ms Wellington, whose interests, so far as it appears from the structure of the Reasons, were primarily what weighed with the Tribunal.  With all respect, we cannot see how her identity required protection, and certainly not at the stage that the Tribunal made the order.  So far as protecting her from undue pressure during the giving of evidence is concerned, her evidence had already been given: that is water under the bridge.  So far as her article 8 rights are concerned, it is difficult to see how evidence that she had never had her bottom pinched by Mr O’Connell would engage those rights; but in any event it was for her to ask for such protection and she did not do so.

16.	As for the point about rule 49, we agree that there is an apparent anomaly that in a case involving an allegation of a sexual offence - where the Tribunal is obliged to make an order under rule 49 - the press may nevertheless be free, unless a restricted reporting order is made, to report the identity of witnesses who will be anonymised in the record of the Tribunal.  It could be argued that this anomaly is more apparent than real because, so it might be said, rule 49 has a different purpose from rule 50.  It should also be observed that the anomaly is in any event not wholly prevented, even if an order under rule 50 is made, because even in such a case the order is of limited duration, and a journalist or member of the public who has been present during the hearing is apparently free, once the proceedings are over, to report what has occurred.  However, in the circumstances of this case, we do not wish to discuss these wider questions.  It is sufficient to say that rules 49 and 50 are different provisions, each of which requires to be applied in accordance with its own terms.

17.	In the particular circumstances of this case, as identified above, there is no proper purpose to be served by the restriction of further reporting in this case, which has already been extensively reported; and an order under rule 50 cannot be justified.  We accordingly allow the appeal and revoke the order.

18.	Mr Sykes, we should say, raised a number of other challenges to the Tribunal’s reasoning, but it is unnecessary for present purposes that we consider those.