This article was first published in the ELA Briefing
In Ajao, the EAT has, for the first time, given some helpful guidance on the complex interactions between the framework for privacy orders in the tribunal (in the Employment Tribunal Rules of Procedure and Employment Tribunals Act 1996) and the protection set out in the Sexual Offences (Amendment) Act 2002.
Background
The claimant in this case was employed by the first respondent for just over six months prior to dismissal in November 2019. A number of claims followed, in the employment tribunal and the county court. The present appeal arose out of two joined tribunal claims in which the claimant alleged direct discrimination and harassment based on sex and race, including an allegation that the claimant had been sexually harassed (including one allegation of a sexual assault) by the sixth respondent, as well as victimisation and failure to pay holiday pay.
Prior to the liability hearing, anonymity and restricted reporting orders were made in respect of the claimant under Rule 50 of the ET Rules, relying in large part on the automatic protection granted to alleged victims of sexual offences in s.1 SOAA. Anonymity and restricted reporting orders were also made under Rule 50 in respect of the sixth respondent.
All claims were dismissed in a liability judgment in February 2022 with the claimant found to be a ‘witness contemptuous of his duty to tell the truth and unworthy of belief’. The allegation of sexual assault and sexual harassment were found to be ‘pure invention’.
At a subsequent hearing following applications by the respondents, the privacy orders in respect of the claimant were revoked.
The tribunal found:
- there had been a material change of circumstances allowing the earlier orders to be revisited under Rule 29 of the ET Rules; and that
- on carrying out the balancing exercise under Rule 50 of the ET Rules, the claimant no longer had a sustainable right to benefit from the privacy orders and the SOAA did not apply to the tribunal to give the claimant lifelong irrevocable protection.
An appeal against that decision to remove the privacy orders, as well as an award of costs made against the claimant and a minor point on liability in the holiday pay claim, followed.
The EAT’s decision
At the heart of this case is the applicability of the lifetime protection for alleged victims of sexual offences which is set out in the SOAA to individuals referred to in proceedings outside the criminal justice system.
Section 1 of the Sexual Offences (Amendment) Act 1992
Section 1 SOAA provides for ‘lifetime’ protection for alleged victims of relevant sexual offences (listed in s.2 SOAA), making it an offence to publish any material ‘likely to lead members of the public to identify that person’ where there is either an allegation of a relevant offence (s.1(1)) or a person is accused of such an offence (s.1(2)).
This protection is automatic, requiring no order by a court or tribunal to give effect to it. Often, however, the employment tribunal will put in place orders under Rule 50 despite those being, strictly speaking, unnecessary.
The ET Rules and the Employment Tribunals Act 1996
Section 11 of the ETA is the underlying statutory authority that allows the tribunal to derogate from the principle of open justice in certain circumstances. Relevant to this case, s.11 permits the creation of rules which empower the tribunal to make orders that protect the anonymity of a person making an allegation of a sexual offence or who is affected by that sexual offence and restricted reporting orders. A ‘sexual offence’ in the ETA means an offence listed as a relevant offence in s.2 SOAA, so the two regimes are, to an extent, co-dependent.
That statutory authority is then expressed in Rule 50 of the ET Rules, which permits the tribunal to make derogations from the open justice principle ‘so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person’.
While the EAT has obliquely dealt with issues arising in this area before (such as in A v X and Choice Support) there has never been a decision looking squarely at the question of whether s.1 SOAA applies to grant lifelong protections where allegations of a relevant sexual offence are made in employment tribunal proceedings. Indeed, there appeared to have been an unexplored assumption – by parties and tribunals alike – that the automatic statutory protection did apply.
That assumption has now been thoroughly tested by the EAT and is no longer applicable. The EAT rejected the claimant’s appeal and the tribunal’s revocation of the privacy orders stands. At the core of this decision is the EAT’s conclusion that that the protection of s.1 SOAA is applicable only where an allegation has been made, broadly, within a criminal context. An allegation of an offence (or conduct that would amount to an offence) in tribunal proceedings does not confer on the alleged victim automatic anonymity.
The EAT found that ‘allegation’ in s.1(1) SOAA meant an ‘allegation in circumstances which raise, or are intended to raise, a real possibility that a criminal charge will follow’. This would include reporting an allegation to the police but goes further and would include an allegation made to a ‘prosecuting authority, a safeguarding body, a social worker or social services department or other person with professional responsibility for taking the complaint further through the criminal justice system’. It does not include an allegation made in an employment tribunal (or other civil, family, or tribunal proceedings) of conduct ‘which, if charged and tried in a criminal court and proved beyond reasonable doubt, would lead to conviction’ of a relevant sexual offence under the SOAA.
The protection in s.1(2) SOAA was not relevant because it was clear from the remaining provisions of the SOAA that the reference to ‘accused’ in in that section referred only to post-charge stages of the criminal process. It was not a reference to accusation in a colloquial sense, but a formal criminal accusation such as being charged with a relevant offence.
On the facts, no ‘allegation’ meeting this test had been made and therefore the SOAA did not apply. It therefore was a matter for the tribunal to carry out the balancing act required by Rule 50 to assess whether a derogation from the open justice principle in the form of privacy orders was permitted. The EAT concluded therefore that the ground of appeal failed.
First, there had plainly been a material change of circumstances allowing the earlier orders to be revisited, in the form of the liability judgment’s conclusions that the claimant’s case was based on falsehoods and the ‘complaints of sexual harassment and sexual assault … were fabricated’. Secondly, the tribunal’s balancing exercise had been conducted properly and the tribunal had been ‘right to place substantial weight on the public interest in the author of a dishonest account being identified’. The two other grounds of appeal also failed, for reasons that are outside the scope of this article, and a further award of costs was made by the EAT against the claimant.
No onward appeal has been made and so the position is now clear:
- where an allegation of a sexual offence (or conduct which would amount to such an offence) is made in a tribunal claim, this will not automatically confer the anonymity protection of s.1 SOAA;
- where an allegation in a tribunal claim has also been made within the broad context of the criminal justice system, the automatic protection of s.1 SOAA does apply. The EAT did not address this point, but it is likely that parties will still, in such circumstances, need to raise privacy orders as a preliminary issue in order to ensure the automatic statutory protection under the SOAA is given effect to (even if, strictly speaking, not required); and
- where the SOAA is not engaged, it will be for the tribunal to assess whether privacy orders are appropriate under Rule 50. It will be for the party seeking such orders to satisfy the tribunal that they should be made. The tribunal must conduct the balancing exercise required under Rule 50 to derogate from the open justice principle by making privacy orders, taking into account the interests of justice and the Convention rights of any person.
This is welcome clarification from the EAT. While the underlying facts in this case were extreme, the EAT has provided a clear framework for future tribunals in cases involving allegations of sexual misconduct and sexual offences.
There remains one notable gap in the law, however. Where an allegation of a sexual offence has been made in a criminal context (for example, a complaint to the police) and forms part of employment tribunal proceedings but is found by the tribunal to be a false allegation, there is no mechanism by which a tribunal can vary or revoke the automatic protection granted by the SOAA. While that power exists in s.3 SOAA, it is available only to crown court judges and justices of the peace. The EAT noted that the lacuna was a matter for Parliament to address (such a niche procedural point is unlikely to be the focus of Parliamentary time).
Ben Smith and Philip Cameron acted for Commerzbank and the five individual respondents in the EAT, and in related proceedings in the tribunal and other forums. Claire McCann was instructed for the respondents in the EAT, tribunal and county court.
