Case involving celebrity sex misconduct allegations shows how privacy orders work
Tribunal proceedings are generally open to the public; this means they can be attended by the press and the parties can be named in the decision. However, tribunals can make restricted reporting orders and anonymity orders, often collectively referred to as privacy orders.
Under the employment tribunal regulations, a tribunal can make a privacy order to prevent or restrict the public disclosure of any aspect of the proceedings either in the interests of justice, or to protect the rights of any person under the European Convention on Human Rights, or to protect confidential information.
Tribunals can also order a hearing to be conducted in private, that the identities of certain individuals should be anonymised, and that measures are taken to prevent witnesses being identifiable by members of the public.
Those concerned with reporting proceedings potentially covered by an order can contact the tribunal to ascertain whether any restrictions are in force. The penalty for breaching an order (especially one relating to alleged sexual misconduct or a disability) is an unlimited fine, and potentially both the individual reporter and his or her organisation can be guilty of the offence.
Tribunal
In a recent case, called CA, RA, RB and RC v News Group Newspapers, the claimant (referred to as CA) brought a claim against his former employers (known as RA, RB and RC, one of whom was a celebrity) that included an allegation of sexual misconduct. At a preliminary tribunal hearing, the employers’ application for privacy orders preventing the press from identifying the celebrity in the case was refused.
The employers appealed. An anonymity order made earlier in the proceedings remained in force pending the outcome of the appeal. The newspaper group asked the tribunal to clarify its reporting rights, which resulted in the tribunal restricting the reporting of the case in order to ‘hold the ring’ (monitor a dispute without becoming involved in it) pending the appeal to the Employment Appeal Tribunal. The privacy order, among other things, prevented the press from naming the employers.
The parties in the dispute succeeded in settling the claim, which was withdrawn in February 2016, but the tribunal had not yet dismissed it when the newspaper group applied for the reporting order to be lifted. This was opposed by both the claimant and the employers but the tribunal made an order in March to lift the restrictions anyway. The claimant and the employers appealed to the EAT against the removal of the restrictions.
EAT
The EAT dismissed the appeal in May 2016 and the employers then appealed to the Court of Appeal. But it appears that the reporting order has now been lifted, as the papers have already named the celebrity in question.
During the case, the EAT clarified how restricted reporting orders should be used:
- tribunals can vary a restricted reporting order even after a claim has been withdrawn (otherwise an order made to ‘hold the ring’ would effectively become permanent)
- reporting orders do not expire automatically when a claim is withdrawn and would usually only be discharged after the tribunal has issued its decision (although tribunals can make a privacy order which outlasts the proceedings)
- tribunals can impose privacy orders in a wide set of circumstances, not just in cases involving sexual misconduct or disability.
Comment
Reporting orders can be granted in all tribunal cases potentially, not only those involving sexual allegations or disability. Both claimants and organisations defending claims can apply for them, and tribunals can decide themselves to impose them. The duration and terms of the reporting order can be varied by a tribunal even after the parties have reached a settlement.
Kevin Lau is a solicitor in the employment law team at Blake Morgan LLP
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