European convention can protect individual identities in tribunal claims
Where confidential or salacious details are part of a tribunal claim it is possible to apply for a restricted reporting order, although even where an order is granted (and that is not straightforward) it would normally only last for the duration of the case.
The case EF v AB examined whether a restricted reporting order could be extended beyond the length of a claim, and the balance between competing rights under the European Convention on Human Rights: Article 8 rights (the right to respect for private and family life) and Article 10 rights (freedom to receive and impart information).
Facts
AB was the managing director of a company which was part of a group of which EF was the chief executive officer. In February 2012 the chief executive received a letter from an anonymous employee raising concerns about the managing director’s conduct in running the company and containing allegations of dishonesty. The chief executive raised the matter with the managing director, who responded by making serious allegations of sexual misconduct concerning the chief executive. The manager also threatened to reveal details of the chief executive’s private sexual activity with his wife. He then demanded £10 million to leave the company and sign a three year non-compete contract. He also wanted money he owed the company to be written off, and his daughters (who were also employed by the company) to each receive £100,000 to leave.
He was suspended and subsequently resigned. He then brought claims of constructive dismissal and sexual harassment, naming the chief executive personally as one of the respondents. The tribunal made a temporary restricted reporting order preventing the managing director, the chief executive, the chief executive’s wife and various corporate respondents from being identified until the case reached its conclusion.
Tribunal
The tribunal found that the managing director’s claims were wholly without merit and dismissed them in their entirety. However, the tribunal refused to make the restricted reporting order permanent, deciding instead that it would remain in force for 21 days. In reaching this decision, it referred to Article 10 of European Convention on Human Rights (freedom of information) and the “general human interest in sex and money involving relatively rich people” (although the tribunal recognised that this was simply nosiness). The tribunal also considered that those who had worked in the company must have been miserable, given the way that the managing director was running the business, and that the employees had a right to know why. The chief executive and his wife both appealed.
EAT
The Employment Appeal Tribunal (EAT) allowed the appeal. The EAT found that the tribunal was wrong to conclude that the ‘public interest’, or the interests of the company’s employees, outweighed the chief executive’s right to privacy, stating that the justification based on the employees’ right to know what was going on was weak. The tribunal should have considered the balance of competing convention rights separately in the case of the chief executive’s wife, even though she was not a party to the proceedings.
The EAT concluded that the restricted reporting order should be extended with respect to the chief executive and his wife. Their undoubted right to privacy in relation to sexual activity, and the absence of any legitimate public interest in revealing their identities, meant that their Article 8 rights had to prevail. The EAT stated that the tribunal’s power to extend restricted reporting orders beyond the period expressed in the Employment Tribunal Act 1996 derived from the convention.
Comment
No one right in the European Convention on Human Rights overrides another. Courts have to conduct a balancing exercise, weighing up one convention right against another, such as the right to respect for private and family life versus the right to receive and provide information and to the public interest in open justice.
An interesting point to note is the EAT recognising that tribunals can use the convention rights as the basis for a permanent restricted reporting order, instead of being restricted by domestic legislation.
Paul Mander is a partner and head of employment and Stuart Miller is a trainee at Penningtons Manches
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