In this case, the EAT held that an employment tribunal ought to have granted the claimant anonymity in his disability discrimination claims.
Background
Rule 50 of the Employment Tribunals Rules of Procedure 2013 (ET Rules) gives a tribunal the power to make an order preventing or restricting the public disclosure of any aspect of tribunal proceedings, so far as it considers necessary, in the interests of justice or in order to protect the Convention rights of any person. Rule 50 goes on to state that when considering whether to make an order the Tribunal should give full weight to the principle of open justice and to the European Convention on Human Rights (ECHR) right to freedom of expression.
The ET Rules have since been updated, and the equivalent provision is now rule 49 of the Employment Tribunal Procedure Rules 2024, but the case analysis is still the same.
Facts
The claimant has Aspergers Syndrome, a form of Autistic Spectrum Disorder. This was accepted as a disability under the Equality Act 2010 by the respondent, J. The claimant considered his disability to be hidden, and had concealed it for his entire working life from both family and employers, although he had made it known to J. During employment tribunal litigation against J, the claimant applied for an anonymity order on the basis of concerns, both from personal experience as well as widely available material including academic research, that were knowledge of his disability to become public it would have a serious adverse effect on his future employability. He argued that there was no public interest in his name being in the public domain, relying on his Article 8 ECHR right to respect for private life. The claimant had indicated that he would not proceed with his disability discrimination claims without anonymity.
An initial tribunal decided not to make an anonymity order on the assumption that, by issuing the claim, the claimant had put his disability into the public domain. He successfully appealed this decision to the EAT who found this had been an erroneous assumption and that the claimant had not been given a fair opportunity to state his case. At the remitted tribunal hearing the anonymity order was again refused on the basis that the claimant had by now left the respondent and obtained another job and there was no medical or psychological evidence to support his contention that further disclosure of his disability would cause him harm. The claimant appealed to the EAT for a second time, arguing that the tribunal had applied the wrong test when considering whether his concerns about future professional harm justified a derogation from the principle of open justice and, or alternatively, that the tribunal’s finding that there was no foundation for his concerns about professional harm was perverse.
The EAT allowed the claimant's appeal, granting him anonymity and going further by ordering anonymity of the respondent's identity too because without this the claimant's identity was likely to be revealed from the detail of the case. It held that the tribunal had set too high a bar for the claimant by focusing on the need for medical evidence, finding it was inherently impossible for the claimant to prove what would happen in the future. Medical and psychological evidence could well demonstrate the extent of the claimant's disability but could not address the issue of whether the disability carried with it the stigma he asserted, and which gave rise to the fears which grounded his application. Moreover, the EAT found it was difficult to see how any report could focus specifically on the claimant’s fears for his future without making some sort of assessment as to employability across the entire secondary and tertiary education spectrum. The EAT asked, rhetorically, how that could practically be done other than by way of experimental research of the sort that the claimant had provided by reference to a research paper. What the claimant had to prove was that he had a reasonable foundation for his belief, which is a relatively low evidential threshold.
Further, the fact the claimant had obtained work following the termination of his employment with the respondent was only relevant if the new employer was aware of his disability, which the tribunal had not explored. Based on all of the material available, including that those with autism are at a considerable disadvantage in the labour market, the EAT concluded that the claimant’s concerns were genuinely held, had an objective foundation, and were reasonable.
In terms of the principle of open justice the EAT found that the identity of the parties was not critical to public understanding of the case, noting that the lay members considered that the interference with the principle of open justice was relatively minor given the fears reasonably held by the claimant.
What does this mean for employers?
The conclusion that fearing the disadvantage autistic people face in the labour market displaces the principle of open justice is perhaps surprising given how important the open justice principle is to the administration of justice. However, in this case the claimant had carefully guarded his disability so could show these concerns were genuinely and reasonably held. Nevertheless, the case opens the door for other autistic claimants to successfully apply for anonymity orders on the same basis. Litigating with these orders in place can potentially be more complicated and costly for both parties, with the increased costs of preparing and providing anonymised documents likely to be shouldered by employers.
