Anonymity orders: how to protect my privacy in employment tribunal proceedings
Whistleblowers are often concerned that bringing a case to tribunal may cause them further disadvantage. This is because in general, judgments are publicly available and are searchable on the Employment Tribunal’s (ET) website and can be found via Google. This might put future employers off and there is no general protection against discriminating against whistleblowers as job applicants. There is a principle of “Open Justice” in the UK legal system, and it is unusual for tribunals to agree to anonymising cases, as justice needs to be seen to be done, and open reporting is part of that.
Can I ask the ET to anonymise my case?
Yes, you can make a request to the ET to anonymise your case. This could be to protect your identity or the identity of your witnesses and could apply to the hearing and to all Tribunal documents including the bundle, listing and judgments. However, it is for the Tribunal to decide whether it is appropriate in any particular case and it is not guaranteed that the ET will grant an anonymity order. Under Rule 50(3)(b) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the Employment Tribunal Rules), the court may approve an order that protects the anonymity of certain people involved in a case. This can be one of the parties involved (such as the claimant) or witnesses in the case.
The ET can order that the names or identifying details of these people not be disclosed to the public, for example by keeping their names anonymous. The ET can decide whether this anonymisation will also extend to any public documents, such as the judgment.
The ET might allow this if revealing certain details might put the whistlelblower‘s (or witnesses’) personal safety at risk, for instance if they revealed a concern about a criminal gang. If the case involves sexual misconduct, or disability, the ET has a specific power to make a Restricted Reporting Order (discussed below) and may agree to anonymise the case to prevent the identification in the media of a person who is making or is affected by an allegation of sexual misconduct and of any person who in a disability discrimination claim may be embarrassed by evidence of a personal nature.
How do I anonymise my case?
In order to anonymise your case, you need to apply for an order under Rule 50(3)(b) of the Employment Tribunal Rules. There is no specific document that needs to be filled out or sent to the Tribunal when making the request. You only need to write to the employment tribunal and state that you are applying for an anonymity order including what you would like to be anonymised – but you need to include the justification for doing so, as discussed in the next question.
It is important you include your case number on any applications or correspondence with the tribunal, so they know which case the correspondence relates to.
You can apply for an order at any stage – but obviously the sooner you do so the better.
On what criteria will the tribunal decide my application?
The party applying for the order needs to show that by having the information be publicly available, one of their fundamental rights are being breached. Typically, that one of their rights under the ECHR will be infringed upon if the trial is not anonymised (for example, under the right to respect for private and family life).
On the other hand, the party applying for the order will need to show why the rights of the other parties (such as freedom of expression or right to a fair trial), will not be harmed by the ET giving an anonymity order.
Whenever the tribunal is deciding whether to make an anonymity order, they are required to give full weight to the principle of open justice and the ECHR right to freedom of expression.
In such cases, where the tribunal needs to balance two opposing fundamental rights, they will apply the proportionality test –where there will be a comparison of importance of the specific rights being claimed in the individual case and a consideration of the reasons for infringing each right.
The Tribunal are likely to consider the impact that having the information made public will have on you. The more vulnerable you are, the more important your right to a private life may be.
The Tribunal is also likely to take into account the public interest in your case and whether it is a legitimate subject for public scrutiny.
This is also why the tribunal will be more likely to grant an order in the least restrictive way possible – so for example, only for a certain timeframe. It is easier to obtain an order limited to the duration of the case rather than a permanent order.
What do I need to prove?
You need to prove that having the anonymity that you have requested is the only way to ensure that your fundamental rights are respected. There is a high bar to having an order granted. As a claimant, potential embarrassment is seen as part and parcel of bringing a claim. Therefore, if the only harm that would come to you is general embarrassment, that would likely not be enough to successfully obtain an order.
It can help your case if you have strong evidence to show that your reputation and career prospects will be damaged as a result of it being publicly known that you are bringing a claim. More specifically for whistleblowers, if you can prove that the stigma attached to being a whistleblower will harm your future employment opportunities, especially in your given sector, you may be more likely to have your anonymity order granted. There is case law to suggest that it is unlikely to be enough to merely state that you want an anonymity order as you think that future employers might search online to see if you had brought a claim against your former employer. If you wanted to make that argument, it is likely that you would also need actual evidence to show how publication of your identity would harm your career prospects.
It may be helpful to consult our page aimed at job applicants which contains some research on how it can be harder to find a job after blowing the whistle at the work place.
The tribunal will therefore look at each case on an individual basis to see if it should grant the order.
Are there specific anonymity rights in some cases?
Yes, the Sexual Offences (Amendment) Act 1992 gives the right of anonymity in court proceedings for victims of sexual offences. This is done by prohibiting the publishing of their identity, or other details that might make their identity obvious, such as their address, picture or information about their school or workplace. There is no corresponding right of anonymity for the person that is the alleged perpetrator.
In order to exercise this right, you should make an application to the court under Rule 50 and cite your right under the Sexual Offences Act.
Section 11 of the Employment Tribunal Act 1996 allows the ET to make a Restricted Reporting Order (RRO) in cases involving allegations of the commission of sexual offences or sexual misconduct. This is to prevent the identification of the person affected by or making the allegation – although it can be difficult to ensure that such an order is enforced globally, as publishers in other countries may not follow the RRO.
Are there other ways I can protect confidential information in the ET process?
There are several other ways of protecting confidential information in the ET process. The most restrictive is conducting the hearing in private (Rule 50(3)(a) of the Employment Tribunal Rules), however this is extremely rare and even more restrictive than an anonymity order under Rule 50(3)(b) of the Employment Tribunal Rules.
If the aim is to protect one of the witnesses involved in the case, you can apply under Rule 50(3)(c) of the Employment Tribunal Rules to have measures put in place to prevent witnesses being identified by members of the public at any public hearings.
And finally, under Rule 29 of the Employment Tribunal Rules, the tribunal has general case management powers. These can include powers to order redaction of sections of a bundle, preparation of a separate bundle for public hearings, as well as having certain information (such as compensation data) put in an anonymised form.