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Permanent Anonymity Orders

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[Thanks to Lionel Stride of Temple Garden Chambers for preparing this case summary]

In F v G the EAT has provided useful guidance as to the circumstances in which orders for restrictions on reporting and/or anonymity can be made both within and outside the ambit of Rule 49 (anonymity orders in cases involving allegations of sexual offences) and Rule 50 (temporary restrictions on reporting in cases involving allegations of sexual misconduct) of the Employment Tribunal Rules of Procedure.

M Justice Underhill suggested that Tribunals adopt the following approach:

  1. Consider whether Rule 49 applies. If so, anonymisation would normally be considered mandatory.
  2. If Rule 49 does not apply, consider whether restrictions on reporting or anonymisation are required to protect the rights of a party under Article 8 of the Human Rights Act (HRA) and, if so, what measures are necessary and proportionate.
  • If such protection is required:
  • If, possible, take any measures under Rule 49 or 50.
  • If neither rule applies (e.g., because there is no sexual offence or misconduct), the measures should be taken in exercise of the general powers of the tribunal under Rule 10 as set out in A v B [2010] ICR 849.
  • If the case falls within the scope of Rule 50 but the relief available under that rule is too limited (e.g., because any restriction of reporting is required beyond the end of proceedings), the Tribunal should set out which powers, whether under Rule 50 or Rule 10, are engaged for each part of the order.
  • If there is no entitlement to protection under the HRA, there is no scope to go beyond the powers within Rule 49 or 50.
  • Tribunals can consider interim restrictions or anonymity and make the final decision at the conclusion of proceedings.

On the facts of the case, the EAT upheld a permanent anonymity order made under Rule 49 that included the names of the Appellant, F, who had won her claim for sex discrimination, and the college at which she worked, as well as disabled students and staff members. Although Rule 49 had no application because there had been no allegation of any sexual offence, the EAT concluded that the wider powers recognised in A v B justified such an order to protect the rights of the students and staff at the college.