Did a woman who worked as a stripper have the right to anonymity in bringing a claim at the Employment Tribunal against her former employer?
No, said the EAT in a recent judgment in A v Burke and Hare.
The Claimant was seeking £1,846 in unpaid holiday, accrued during her time working as a stripper for the Respondent, between 2016 and 2019. She did not want to pursue the claim unless she was granted an anonymity order.
Rule 50 (1) of the Employment Tribunals Rules of Procedure (the Rules) enable an anonymity order to be made if ‘necessary in the interests of justice or in order to protect the Convention rights of any person’. The Claimant said the order was necessary to protect her Convention right to respect for a private and family life under article 8 of ECHR. The Claimant also made reference to Article 6 which provides that the public and press may be excluded from judicial proceedings in the interest of, amongst other things, ‘the protection of private life’.
Since leaving Burke and Hare, the Claimant had changed career. She said that if a judgment was issued with her name, she would be at risk of stigmatisation and sexual violence.
Importantly, Rule 50 (2) ETRP states that in considering whether to make an anonymity order, ‘the tribunal shall give full weight to the principle of open justice and to the convention right to freedom of expression.’
The Claimant’s application was refused at the initial stage in a Preliminary Hearing at the Employment Tribunal in May 2020 where the judge held that the Claimant should have foreseen that working as a stripper would harm her career prospects and any adverse consequences resulting from publication of her name should be regarded as the consequence of her choice of work. Rather ala, the judge also commented that the Claimant had ‘willingly undertaken the risk of abuse and violence when she worked as a stripper.’
No documents from the Preliminary Hearing have been published, so this is a quote taken from the EAT judgement which refers to the comments made by the judge at the PH. It is not part of a stripper’s job to be abused or subjected to violence, any more than it is a lawyer’s, doctor’s, teacher’s or judge’s, for that matter. In fact, only in limited circumstances can one consent to violence and we all consent to the risk of violence by existing, so the point seems flawed on many levels.
Conversely, the EAT objected to the Claimant’s assertion that stripping was a form of sex work, on the basis that sex work is usually accompanied by exploitation and coercion that was absent in the Claimant’s case. So, on the one hand it was determined she had willingly undertaken the risk of violence and abuse (indeed, she alleged she had been abused by customers who called her a ‘slut’, threatened to follow her home and touched her without her consent) yet on the other hand she hadn’t been exploited or coerced to the degree required to qualify her as a sex worker, which could have potentially helped her obtain the anonymity order she wanted.
The EAT ultimately held that the potential stigmatisation the Claimant might suffer did not outweigh the principle of open justice. Of course, open justice is important and the analysis of requests for anonymity in judicial proceedings should be stringent. But, whatever your view on whether the Claimant in this case should have been granted anonymity, comments that appear to place a portion of blame with the victims of sexual violence, rather than the entirety of it with the perpetrators, are dangerous and misguided.
This blog was written by Jack Dooley, Paralegal at didlaw.
