Open Justice v Right To Privacy

The principle of open justice prevailed over right to privacy in the case of Ameyaw v PricewaterhouseCoopers Services Ltd, where an anonymity order for the publication of the judgment was denied under Rule 50 of the Employment Tribunal Rules (ETR).

Employment tribunal judgments and written reasons are published on a public register online since February 2017 at www.gov.uk/employment-tribunal-decisions. The register includes judgments issued after February 2017 and some earlier judgments. The tribunal can, either out of its own initiative or following an application, make an order to exclude from publication any aspects of the proceedings it considers adequate in order to preserve the interests of justice, to protect the rights of any person under the European Convention on Human Rights (EHRC), or in the circumstances set out in section 10A of the Employment Tribunals Act 1996 (Rule 50(1)).

Facts

Ms Ameyaw brought employment tribunal proceedings against her previous employer. Her employer applied for the proceedings to be struck-out, on the basis that the claim was ‘scandalous and vexatious’. The employee’s application was dismissed at a hearing held in public although the judge held that the applicant was disruptive at the preliminary hearing. The case went ahead to a full hearing, where Ms Ameyaw’s claims were subsequently dismissed.

Consequently Ms Ameyaw applied for an order that the final hearing judgment should not be entered on the register, the preliminary strike out decision to be removed from the register and or for her details to be anonymised in both judgments. The Tribunal refused her application on the basis that there was no reason under Rule 50 to override the principle of open justice. Ms Ameyaw appealed on the ground that the online publication of the strike-out judgment breached her right to privacy under Article 8 of the ECHR.

Competing rights

The principle of open justice does not just require that the hearing takes place in public; it also requires that judgments generally, would be made publicly available. This principle maybe curbed where other rights are engaged, and it would ultimately lead to justice being denied.

When it is established that the right to privacy arises the tribunal needs to determine whether the information is private and must carry out a balancing exercise arising from the broader interests such as the right to a fair trial and freedom of expression set out by Article 6 and Article 10. This does not mean that Article 6 and Article 10 rights would always outweigh other rights set out by ECHR.

The Tribunal has the authority under Rule 50 to restrict transparency in cases concerning confidential information, sexual misconduct and disability or other competing ECHR rights, although it is very rare that other rights are so strong as to limit transparency completely.

Reasoning

On appeal, the application was dismissed by HHJ Eady QC sitting alone.

The Tribunal had no power to restrict a case from publication. The issue on appeal was whether the Tribunal has failed to provide the Claimant with anonymity. Ms Ameyaw’s reasoning was that she was not able to obtain an interview for a year following the hearing, despite numerous applications. The Employment Appeal Tribunal held that this argument did not tip the balance in her favor.

Conclusion

Both employers and employees can be impacted by the publicity entailed in bringing disputes to an open hearing, compounded by a permanent record of the register which is a matter of public record.

Getting in touch

For more information about the points raised above, please contact Carol Shaw, Director and Head of Employment Law at Spratt Endicott Solicitors on 01295 204140, or email cshaw@se-solicitors.co.uk.​

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.​