An Employment Appeal Tribunal has held that it was entirely appropriate for a claimant in a disability discrimination claim to be given an anonymity order because he did not want the fact of his disability to be made public. The claimant who had Aspergers had concealed his disability throughout most of his career and had not even disclosed it to family. He was very keen that it should not be widely disclosed via the Employment Tribunal proceedings.
Reversing the decision of the original tribunal which declined to give the order, the EAT held in F v J that there were specific reasons in this case why it should be given.
The general rule on anonymity orders
The general rule in Employment Tribunals is that anonymity orders are rare and very much an exception to the general rule that justice must be served in open court. Usually they are reserved for cases where there are allegations of sexual misconduct or other allegations that are so serious as to potentially deprive the claimant of their ability to practice a profession.
The tribunal set too high a hurdle
The EAT held that the employment tribunal had set the bar too high and had wrongly focused on the need for the claimant to provide medical evidence in support of his application for anonymity. It had also wrongly focused on the fact that the claimant had a new job without considering whether his new employer knew of his disability. He was only required to prove to the tribunal that he had a reasonable belief for wanting the order. The EAT held that in this case that it was not contrary to the public interest to provide anonymity.
Knowledge of disability
F had disclosed to his employer J that he had Aspergers. This employer was therefore on notice of disability and bound by the Equality Act 2010 provisions around the protected characteristic of disability. F worked as a university lecturer and brought multiple complaints in July 2021, while still employed, relating to disability discrimination.
Stigma around neurodiversity
F was concerned that from both academic research and his personal experience that knowledge of his disability would have adverse consequences on his future employability. This is a legitimate concern of many of our clients and when we negotiate an exit or settle claims for clients with disability, we are routinely asked to advise on what to say to a new employer and whether to declare disability at the recruitment stage or not.
F indicated that he would not proceed with his claim unless he had anonymity. His view was that were he to resume academic activities knowledge of his Asperger’s would cause considerable disorder among his students.
The tribunal’s decision
The tribunal refused F’s application on the basis that he had provided no medical evidence that he would suffer any harm if his condition were disclosed. As to employment prospects, the tribunal found that F’s evidence was not relevant to his circumstances.
F appealed to the EAT arguing that the tribunal had applied the wrong test, and/or that the tribunal’s finding that his concerns had no basis was perverse.
The appeal decision – reasonable belief
The EAT agreed with F and allowed his appeal. The EAT held that the tribunal had set too high a bar for F to satisfy and had wrongly focused on the need for medical evidence. It was impossible for F to prove what might happen in the future. Medical and psychological evidence would not be able to address the employment stigma that F relied on. All F had to prove was that he had a reasonable foundation for his belief, which is a relatively low evidential threshold. The tribunal had made much of the fact that F had obtained work following the termination of his employment but did not ask the question whether the new employer was aware of his disability which was surely a relevant factor.
Genuinely held concerns outweighed open justice principle
The EAT concluded that F’s concerns were genuinely held, were based on an objective foundation and were reasonable. There was no impact in this case on the public interest. The identity of the parties was not critical to the understanding of the case. The EAT lay members considered that the interference with the principle of open justice was relatively minor as compared with F’s genuine and reasonably held fears. The EAT concluded that both parties to the proceedings should be anonymised.
Anonymising the other party
The university respondent was also anonymised because the level of detail that was likely to emerge in the proceedings was such that it would be highly likely to identify F if it were not also anonymised.
Commentary
I really like this decision. It absolutely makes sense. Despite much window-dressing and alleged inclusion of neurodiversity in the workplace as disability discrimination lawyers and litigators at didlaw we see the reality on the ground which is that there is a huge amount of stigma and it is a big decision for individuals to feel they can declare their disability at work. They must declare if they want to benefit from the provisions of the Equality Act 2010 around disability and those provisions provide really valuable protections but the downside is that you never really know how your employer may react to learning that you have a disability they were previously unaware of. We routinely see situations where everything changes at work for someone when their employer gains awareness of an underlying disability and it can be pretty ugly. This is not how it should be but it is the harsh reality of working Britain today.
This blog was written by Karen Jackson, Founder-CEO of didlaw, a leading expert in disability discrimination in the workplace and huge advocate for people with disabilities.
