The right to privacy – Non-wags may apply!

June 1st, 2022

The recent press coverage of the libel case between Coleen Rooney and Rebekah Vardy deserves a mention, if only because of my love of the phrase #WagathaChristie.  However, on a more serious note, the case has brought into sharp focus privacy rights and got me thinking about the Employment Tribunal and Employment Appeal Tribunal’s duties, as public bodies, to have regard to rights under the European Convention on Human Rights, most notably the right to privacy under Article 8.

(Tenuous link I know. Please forgive me!)

The Tribunal has discretion, on its own initiative or on application to make an order to prevent or restrict the public disclosure of any aspect of proceedings so far as it considers necessary in the interests of justice or to safeguard Convention rights.

When considering an application, the Tribunal should give full consideration to the need to dispense open justice and the right to freedom of expression. Accordingly, whilst such orders are not uncommon, they will not be granted automatically – even when both parties have applied jointly. Furthermore, any third party with a legitimate interest, such as the media, has the right to make representations to a Tribunal before an order is made.

Orders might include:

  • An order that the hearing be conducted in private
  • An order that prevents the identity of parties, witnesses, or third parties from being disclosed to the public, by the use of anonymisation or other means – whether in the course of the hearing itself or when listing any documents on the public register
  • An order for measures to be taken that will protect witnesses at a public hearing from being identified
  • A restricted reporting order – most notably for cases involving allegations of sexual misconduct and disability

The underlying purpose of an order is not to provide permanent anonymity but is simply to ensure individuals are not under undue pressure when giving evidence. 

However, case law has served to widen the scope of the ‘classic’ restricted reporting orders to acknowledge rights derived under EU law which serve to ensure that a claimant is not deterred from seeking justice.  Accordingly, permanent anonymity orders and protection that extends to third parties who are not part of the legal proceedings are also possible. 

Similar provisions apply for the making of orders in the Employment Appeal Tribunal and other jurisdictions such as the County Court.

The right to privacy and access to justice are fundamental rights that underpin our legal system.  Practitioners should have due regard to these rights when embarking on litigation and advising clients.

A salient reminder perhaps, that the right to privacy extends beyond footballers’ wives!

This blog was written by Kate Lea, Senior Solicitor at didlaw.

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