X v Y [2021] ICR 147
The appeal by the claimant was successful. The Employment Appeal Tribunal ruled that the employment judge had erred by failing to consider whether to grant anonymisation, given the sensitive nature of the claimant’s transgender status and fragile mental health. Consequently, the court ordered the anonymisation of the names of the parties in the judgments of both the employment tribunal and the appeal tribunal.
Key Principles:
The principle of open justice, covered by Article 6 of the Human Rights Convention, can sometimes be outweighed by privacy concerns, especially when sensitive personal details are involved.
While the Employment Tribunals Rules of Procedure 2013's Rule 50 allows for the prevention of public disclosure in specific circumstances, it would generally be applied in exceptional cases where a litigant’s right to privacy is concerned.
Redaction of sensitive information may not always be proportionate. However, anonymisation can provide a less drastic means of protecting a claimant's Article 8 rights.
In certain cases, it may be the responsibility of the employment tribunal to independently consider whether a Rule 50 order should be made, especially when the affected party hasn't requested it.
Facts & Application of Law: The claimant, having undergone unfair dismissal proceedings, applied for particular sensitive references related to his transgender status and mental health to be removed from the judgment. The initial justification for the inclusion of this information was its relevance to the lateness of the claim brought by the claimant. However, no prior application was made to prevent or restrict public disclosure of this information. Given the claimant’s fragile mental state, the lack of legal representation, and the evident repercussions of publicising his transgender status, the Court of Appeal deemed the employment judge's decision not to consider anonymisation as a legal error.
The Court also noted that the claimant’s application for anonymity, made ten days post-judgment, did not render the judge functus officio, implying that the judge still retained the power to make an anonymity order even after the judgment issuance.
For individuals looking to appeal to the Employment Appeal Tribunal from the Employment Tribunal, this case underscores the balancing act between the principle of open justice and the protection of sensitive personal information. The judgment sheds light on the importance of considering individual rights to privacy, especially in matters that may have significant personal and social repercussions.
