Can a person who is named in a judgment but who is not a party to the proceedings get an anonymity order?
Yes, decided the EAT in TYU v ILA Spa Limited, which held that the tribunal had erred in rejecting an application from an individual, who was neither a party nor a witness, when she sought to have her name removed from a tribunal judgment relating to claims brought by former colleagues.
TYU was employed by ILAS Ltd. She resigned in November 2016 after she was directed to attend a disciplinary hearing. She subsequently lodged but later withdrew a claim for unlawful deduction of wages against the Respondent. In March 2018, an employment judge heard claims brought by two of TYU’s former colleagues and relatives, R and S. TYU provided two documents before their hearing to R and S but she was not a witness in those proceedings.
R’s and S’s claims were rejected in a judgment, on the basis that there was sufficient evidence to show that they had misappropriated the Respondent’s stock. That judgment made several references to allegations against TYU, including that she had signed off on the payment of false invoices, that the police had been consulted about allegations of theft, and witnesses in internal proceedings were frightened that she may receive their statements.
TYU contacted the tribunal to make an application that her name be removed and/or that certain material be redacted. She argued that her naming in the judgment was “highly damaging to my reputation and employment prospects” and that she has suffered considerable distress. The main grounds of her application were that: (1) there was no intrinsic link between the allegations against her and the allegations against R and S; (2) she did not know that the allegations made against her would be aired during the hearing or included in the judgment; (3) her name could be removed without it affecting the clarity of the judgment; (4) the references to family relationships were personal matters, which were unnecessary for the judgement; (5) she had given notice of resignation before the disciplinary allegations she faced were first raised; and (6) the fact that the judgment appeared on a Google search of her name showed the potential harm to her privacy rights and reputation.
An employment judge rejected her application. The judge found that TYU’s Article 8 rights were not engaged. He took the view that TYU could not have any reasonable expectation of privacy because information revealing her identity had been discussed in a public trial. The judge observed that “a third party who was not a party to proceedings, nor a witness, has no greater or lesser Article 8 rights than those who participated in the proceedings”. In the alternative, the judge concluded that even if TYU’s Article 8 rights were engaged, they did not outweigh rights protected by Articles 6 (right to a fair trial) and 10 (freedom of expression). TYU appealed to the EAT.
The EAT allowed the appeal. It said that the tribunal had erred in law in both its conclusions. It confirmed that the fact that information had already been mentioned at a public hearing and/or in a published judgment did not necessarily preclude the engagement of Article 8. The existence of prior publicity was likely to be highly significant where Article 8 is asserted to protect what is said to be private information, but less so where the issue is ongoing or future reputational damage and/or the impact on the applicant or family members of repetition of the material in question. The judge therefore erred in regarding the prior publicity as fatal to TYU’s application.
The judge was also wrong to say that TYU’s status as a non-party and non-witness was not a distinguishing feature. TYU’s status was potentially relevant to the issue of whether Article 8 was engaged since it affected whether loss of reputation was a foreseeable consequence for her. The EAT went on to hold that Article 8 clearly was engaged on the facts of this case. TYU would have had a reasonable expectation that she would not be named in a public judgment in relation to the allegations against her, especially as those allegations had not been adjudicated.
The EAT also held that the judge had failed to carry out the necessary balancing exercise between TYU’s Article 8 rights and Articles 6 and 10. The tribunal did not assess the impact on her, nor did it determine the extent or proportionality of the interference with Article 10 protected rights and open justice if the application were granted. The tribunal also did not consider whether measures could be adopted that would have mitigated the harm to TYU’s Article 8 rights, such as a clear disclaimer in the judgment that the allegations concerning her had not been determined nor had she been questioned about them.
This is an interesting judgment. The internet makes it easy to discover information about a third party and having a judgment that you are mentioned in can damage a person’s reputation. This case provides guidance and ensures that the right to have a private life are properly safeguarded.
This blog is written by Anita Vadgama, Partner at didlaw.