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Permanent Anonymity Orders

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 Thanks to Paul Smith of Broadway House Chambers for preparing this case summary

Is the risk of the public believing unfounded allegations a valid reason for anonymising an employment tribunal's judgment?

No, held the EAT in BBC v Roden.

Whilst not directly in issue as part of the employee's claim of unfair dismissal, numerous allegations of sexual assault had been made and it would have been necessary to consider them as part of the evidence. The Employment Judge at first instance ordered that the employee's identity be anonymised throughout the hearing and again, permanently, upon promulgation of the judgment.

On appeal the EAT (Simler J) recognised that, in line with the requirements of rule 50, the employment tribunal had to carry out a balancing exercise between Articles 6, 8 and 10 of the European Convention on Human Rights in determining whether to make an anonymity order. The making of such an order is not a straightforward case management order involving the exercise of a wide discretion, as 'there is a right or wrong answer in each particular case'.

Simler J concluded that the employment tribunal had fallen into error because it had not carried out the balancing exercise; it focused instead on one factor, the risk of the public misunderstanding and any consequences that might have had on the employee. This of itself was not a valid factor as it was open to the employment tribunal to specify publicly in its judgment that such allegations had not been proven. The principle of the public interest in open justice attracts considerable weight and the public can be trusted to distinguish between an allegation and a finding of guilt.