Safia Tharoo acted for Q Ltd in this case
The Court of Appeal (Bean LJ and Rose LJ) has handed down its judgment in the case of L v Q Ltd, which was heard at short notice in light of the importance of the issues involved. The key principle to take away is that an ET is not permitted to rely upon Rule 50 of the Employment Tribunal Rules to order that its judgment must not be published on the Register (unless the circumstances are exceptionally rare – so rare in fact that the Court of Appeal couldn’t even imagine such a scenario!)
Mr L had brought claims of direct and indirect discrimination, discrimination arising from disability, harassment and victimisation against his employers Q Ltd. Shortly before the hearing began, he had applied for various orders, most notably that the hearing should be held in private, the names of those involved should be anonymised, and that the judgment should not be published on the Register. All of these were granted.
The ET upheld some of the claims brought; Q Ltd appealed against those findings, as well as against the orders mentioned above. The EAT (Slade J) allowed part of the substantive appeal and remitted that to a fresh tribunal. The EAT also upheld the decision to anonymise the names of those involved in the hearing, but set aside the order that the judgment should not be entered onto the Register. The EAT directed that “some of the initials used in anonymisation will be changed and passages in the judgment of the ET redacted to the extent reasonably necessary to preserve the anonymity of the parties and witnesses.”
Mr L therefore sought an order that the judgments of the ET and EAT not be published pending an appeal to the Court of Appeal; he also sought an order that in any event, the two disabilities he had relied upon to advance his case should be referred to only as Conditions A and B, and that the judgments be further redacted to remove descriptions of the direct effect of those conditions on him and of an incident of which he spoke of disturbing matters said to be related to his disabilities. The EAT declined to make such orders.
Mr L then appealed to the Court of Appeal; that Court considered that the issues relating to the publication of the judgment were such that they should be heard at an expedited hearing (with all other appeal points dealt with in the usual way). Therefore, they considered two matters: first, whether the ET judgment should be entered onto the Register, and secondly, if so, whether the disabilities should be anonymised and other detail redacted.
The Court considered the wording of Rule 50 of the ET Rules and took account of the analysis of HHJ Eady QC in Ameyaw v PriceWaterhouseCoopers Services Ltd UKEAT/0244/18/LA. They also considered a number of the leading authorities on the common law principle of open justice, including the Supreme Court decision in R(C ) v Secretary of State for Justice  1 WLR 444, where the following quote from Jeremy Bentham was noted:
In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial. The security of securities is publicity.
The Court noted that leaving aside cases involving national security, to which separate provisions applied, there was no explicit power in the Rules to prohibit publication of the judgment altogether.
Mr L argued that the fact that Rule 50(3) referred to a non-exhaustive list of orders, meant that Rule 50 as a whole should be construed so as to allow the ET to keep its judgment secret ‘to protect the Claimant’s Article 8 rights’; C argued that his disabilities were deeply private and he did not want information about them to be in the public domain. The Court of Appeal took a very strong position against such an argument, describing it as “the thin end of an enormous wedge, not confined to cases in employment tribunals nor to claims for disability discrimination.” They considered that it went against all the authorities on open justice which they had already referred to. In conclusion the Court held:
It is unnecessary to go so far as to say that there will never be a case (other than one concerning national security) in which an ET judgment can be kept secret by not being entered on the Register. I will only say that as at present advised I find it hard to imagine the circumstances in which it would be right for an ET acting under Rule 50 to withhold publication of a judgment altogether. If there is ever to be such a case, certainly this one is not it.
The Court then turned to the second issue, whether the judgment should be redacted to remove reference to Mr L’s disabilities and the consequences of his conditions. They decided that no further redactions should be permitted, and agreed with Slade J who had noted that “to extend redaction to the disabilities and the consequences of them which are the foundation of them would fundamentally undermine understanding of the [ET] judgment”. The Court also pointed out that Q Ltd’s witnesses could not be prevented from being told of the judgment or discussing it, and that the prospect of someone reading the judgment and deciphering the anonymisation to work out who the case was about was extremely remote. In their view, it was “wholly unjustifiable to have judgments censored in this way”.
This case is a clear restatement of the importance of the ‘open justice’ principle when set against an individual’s desire to keep personal details private. It is also an important reminder to ET’s about the limits of their powers – in addition to determining the point about publication of judgments, the Court of Appeal was very critical of the ET’s decision in this case to hold the hearing in private (albeit that this was not the subject matter of this appeal). It is clear that if an ET wants to exercise its powers under Rule 50, it needs to clearly explain the balancing exercise it has undertaken and the reasons in favour of making such orders.
Find the full judgment online by clicking here
Does the Court of Appeal decision in Kong v Gulf International Bank UK Limited dilute the protection for whistleblowers? Read more >