Automated Summary
Key Facts
The case involves an appeal against Employment Judge Adkin's refusal to make a Rule 50 Order restricting publicity for an interim relief hearing. The claimant was dismissed by a private equity firm and alleges protected disclosure detriment, harassment (sex, race, religion/belief, sexual orientation), and victimization. The employer argued the hearing would cause reputational damage and severe financial consequences if public. The judge held interim relief hearings are public unless an order is made under Rule 50, and found the employer's evidence insufficient to justify privacy. The appeal upheld the judge's core reasoning but noted procedural infelicities.
Issues
- The tribunal evaluated whether Employment Judge Adkin erred in law by refusing to make a Rule 50 order to restrict publicity during the interim relief hearing. The analysis focused on whether the Respondents' evidence of potential reputational and financial harm justified a private hearing, and whether the Judge correctly applied the legal test for such orders. The tribunal found no legal error in the refusal, as the evidence did not meet the required threshold for restricting publicity.
- The Employment Appeal Tribunal considered whether hearings to determine applications for interim relief are required to be held in public under the ET Rules 2013. The core issue was whether such hearings constitute a 'preliminary issue' requiring public determination, or if they can be held in private. The tribunal concluded that interim relief hearings are public hearings unless an order restricting publicity is made under rule 50.
Holdings
- The Employment Appeal Tribunal held that hearings to determine applications for interim relief must be conducted in public, as they involve the determination of a preliminary issue under the ET Rules 2013. The Employment Judge did not err in law by refusing to make an order restricting publicity under Rule 50, as the Respondents' evidence was insufficient to establish that publicity would prevent justice being done.
- The Tribunal concluded that the evidence provided by the Respondents (a precarious financial position and potential reputational damage) did not meet the high threshold required to justify a private hearing under Rule 50. The core reasoning of Employment Judge Adkin was valid, as the Respondents failed to demonstrate catastrophic consequences that would deny justice.
Remedies
- The Employment Appeal Tribunal upheld the Employment Judge's decision to refuse a Rule 50 Order, requiring the interim relief hearing to be held in public. This was based on insufficient evidence from the Respondents that publicity would prevent justice from being done.
- The anonymity Order, which had been put in place pending the appeal, was discharged as the Respondents did not seek permission to appeal. This was confirmed in the final judgment.
- The Employment Appeal Tribunal rejected the Claimant's application for costs, concluding the appeal was not misconceived and that discretionary factors weighed against awarding costs.
Legal Principles
- The burden to establish a derogation from open justice lies with the respondent seeking a Rule 50 order. The tribunal found this burden was not discharged, as the evidence only demonstrated potential reputational damage and financial harm, which were insufficient to justify a private hearing.
- The Employment Appeal Tribunal emphasized the principle of open justice, stating that hearings must be held in public to ensure justice is 'manifestly and undoubtedly seen to be done' (Baroness Hale in Dring v Cape). The tribunal highlighted that commercial embarrassment alone cannot justify restricting publicity, as the public interest in transparency outweighs such concerns.
- The tribunal interpreted the Employment Tribunal Rules 2013, particularly Rule 50, which allows orders restricting publicity only if necessary in the interests of justice or to protect Convention rights. The court held that interim relief hearings are public unless a Rule 50 order is granted, and that such orders require 'clear and cogent evidence' of harm.
Precedent Name
- X v United Kingdom
- Leicester University v A
- Steer v Stormsure Limited
- Raja v The Secretary of State for Justice
- Dring v Cape Intermediate Holdings Ltd
- Micallef v Malta
- AAA v. Associated Newspapers
- R v Legal Aid Board ex p. Kaim Todner
- Parkins v Sodexho Ltd
- Bombardier Aerospace/Short Brother v McConnell and others
- R. v. Chief Registrar, Ex p. New Cross Society
- Markass Car Hire Ltd v Cyprus
Cited Statute
- Employment Rights Act 1996
- Trade Union and Labour Relations (Consolidation) Act 1992
- Employment Tribunals Act 1996
- Equality Act 2010
Judge Name
James Tayler
Passage Text
- Hearings to determine applications for interim relief are public hearings.
- The burden of establishing any derogation from the fundamental principle of open justice or full reporting lies on the person seeking that derogation.
- I consider that the core component of Employment Judge Adkin's reasoning was... that the evidence did not support the making of an order under rule 50 ET Rule 2013.