Case Law: CA and others v NGN, EAT examines the effect of restricted reporting order following withdrawal of a claim – Rob Armstrong

11 06 2016

employment-appeals-tribunalAn employment tribunal may make an order preventing or restricting the public disclosure of any aspect of proceedings so far as it considers necessary in the interests of justice in order to protect the rights of relevant individuals under the European Convention on Human Rights – in the case below, the right to respect for private and family life.

In considering whether to make a restricted reporting order (“RRO”), an employment tribunal must give full weight to the principle of open justice and to the Convention right to freedom of expression. In CA, RA, RB and RC v News Group Newspapers Ltd, the Employment Appeal Tribunal (“EAT”) considered the jurisdiction of an employment tribunal in relation to an RRO after the withdrawal of claims.

Background

RA (a public figure) and RB employed CA to provide hairdressing services to RC. CA was dismissed in mid-2015, and subsequently brought claims of unfair dismissal and sex discrimination against RA, RB and RC.

Given the nature of the case, and presumably given RA’s celebrity status, in October 2015 RA, RB and RC applied for various privacy orders under Rule 50 of the employment tribunal rules, which are contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the “2013 Rules”). At that time the case was still listed for a hearing to commence on 29 March 2016.

On 9 December 2015, the employment tribunal judge refused all applications for privacy orders. RA, RB and RC appealed to the EAT against this decision. Permission to appeal was granted, and listed for a hearing in February 2016.

In the meantime, News Group Newspapers Ltd (“NGN”), who wished to write an article on the case, attended the employment tribunal to ask whether there was an RRO in place. A telephone preliminary hearing (“PH”) was held, at which the original employment tribunal judge made an RRO. NGN, who was present for part of the PH, was informed that it could apply for the RRO to be varied or lifted at a subsequent PH to be held shortly.  The Tribunal also confirmed that the RRO had been granted only to “hold the ring” because of RA, RB and RC’s pending appeal to the EAT.

Subsequently, the parties to the initial employment tribunal proceedings (RA, RB, RC and CA) reached a settlement following which CA’s representative wrote to the employment tribunal to confirm that CA wished to withdraw his claim, and that he did not object to the claims being dismissed on withdrawal. The parties’ solicitors then wrote jointly to the EAT withdrawing the appeal.

Before the claim was dismissed by the employment tribunal, NGN wrote to the employment tribunal under Rule 50(4) of the 2013 Rules to apply for the RRO to be revoked or discharged. It argued that the RRO no longer had effect as the claim had been withdrawn.  This application was considered at a hearing in March 2016.  The employment tribunal held:

(1)   an employment tribunal retains the power to revoke or vary an RRO after the withdrawal of a claim;

(2) the RRO had not automatically expired upon withdrawal; and

(3)  upon conducting a fresh balancing exercise of Convention rights, the RRO should be discharged.

RA, RB, RC and CA (together, the “Appellants”) appealed against findings 1 and 3, and NGN cross-appealed against finding 2. The EAT dismissed both the appeal and the cross-appeal.

The Law

Broadly speaking, section 11(1)(b) of the Employment Tribunals Act 1996 (the “ETA 1996”) provides that, in cases involving allegations of sexual misconduct, the employment tribunal can make an RRO which will have effect until the promulgation of the decision of the employment tribunal.

However, Rule 50 of the 2013 Rules provides that a tribunal may make an order with a view to restricting the public disclosure of any aspect of employment tribunal proceedings at any stage of the proceedings.

The EAT’s decision

Appeal ground 1: the employment tribunal’s power to revoke or vary an RRO post-withdrawal

The EAT concluded that, under the 2013 Rules, a withdrawal of a claim brings an end to the claim, but not an end to the proceedings. In this regard, the tribunal has the power to vary or revoke an RRO even after a withdrawal of the claim.

The EAT noted that, if this was not the case, a permanent privacy order would be created where a claim was withdrawn, which the press would have no ability ever to challenge. This would amount to a permanent interference with the Convention right to freedom of expression. The appeal was dismissed accordingly.

Appeal ground 2: the RRO had not automatically expired upon withdrawal

NGN argued, amongst other things, that the employment tribunal’s power to make an RRO stems from sections 11 and 12 of the ETA 1996, which limit the maximum period for an RRO to the date the employment tribunal’s decision is promulgated.

The EAT held that a withdrawal of a claim is an action by a party, and not a promulgation of a decision by an employment tribunal. In any event, the EAT agreed with the employment tribunal judge that the power of the employment tribunal under Rule 50 of the 2013 Rules extends beyond the strict terms of sections 11 and 12 of the ETA 1996 where the principle of effectiveness under EU law arises or where Convention rights require protection.  In this regard, the EAT considered that the employment tribunal has jurisdiction to make an RRO last beyond the end of the proceedings.

Accordingly the RRO had not lapsed automatically on the withdrawal of the claim, and NGN’s cross-appeal was dismissed.

Appeal ground 3: upon conducting a fresh balancing exercise of Convention rights, the RRO should be discharged

The EAT decided that the employment tribunal judge had dealt with the balancing exercise of the two Convention rights in his judgment. Further, he had identified the fundamental principle of open justice. Both the employment tribunal judge and the EAT referred to the following points from the relevant authorities:

  • the burden of establishing any derogation from the fundamental principle of open justice or full reporting lies on the person seeking that derogation, which will need to be established by clear and cogent evidence;
  • where full reporting of proceedings is unlikely to indicate whether a damaging allegation is true or false, courts should credit the public with the ability to know that an unproven allegation is just that;
  • the principle of open justice is grounded in the public interest, irrespective of any particular public interest the facts of the case give rise to; and
  • it is an aspect of open justice and freedom of expression more generally that courts respect not only the substance of ideas and information but also the form in which they are conveyed.

The Appellants argued that the employment tribunal judge had erred in taking into account the fact that the RRO had been made only to “hold the ring“, when it was irrelevant.  The EAT disagreed.  It was not irrelevant and the judge had been correct to take this into account, together with the change in circumstances, i.e. that the claim had been withdrawn.  The EAT concluded that the judge had properly assessed the competing Convention rights in light of the changed circumstances.

The Appellants also argued that the employment tribunal judge had given excessive weight to the principle of open justice, in light of the settlement and the resulting fact there had been no public hearing of the case. The EAT noted that as one of the Appellants was a well-known public figure, his behaviour as an employer amid allegations of sexual misconduct were legitimate subjects for public scrutiny.  The EAT decided that the fact that there had been no public hearing did not mean the principle of open justice did not apply.

Further, the Appellants argued that the employment tribunal judge had failed to properly consider the effect of discharging the RRO on the right to respect for private and family life of CA and of RA’s family. The Appellants argued that there was an obvious inference that harm would result from reporting the case given the way newspapers handle allegations of sexual misconduct involving celebrities.  The EAT disagreed, and held that the judge had properly conducted the balancing exercise, taking into account all the facts available, including RA’s celebrity status, the nature of the allegations and the fact that CA would have expected his allegations to become public.

In addition, the Appellants argued that the employment tribunal judge had failed to consider whether NGN had received information about the case by lawful means. The Appellants argued that, as they had not supplied NGN with the information, unless NGN provided information as to the nature of its source, the judge should have inferred that it had been obtained improperly, and that this was a factor in favour of retaining the RRO.  The EAT disagreed, and noted that there was insufficient evidence to conclude that NGN had obtained the material unlawfully.  The EAT agreed with the judge’s approach that if the Appellants considered there had been a breach of their privacy rights, they could seek a privacy injunction in the High Court.

Finally, the Appellants argued that the employment tribunal judge had failed to give sufficient weight to the public interest in the settlement of disputes. However, the EAT noted that there is no presumption in favour of not reporting settlements or settled proceedings.  The EAT endorsed the judge’s analysis that, although parties to a settlement have a legitimate expectation that the settlement will preserve confidentiality that would otherwise be lost if the matter went to a public hearing, on the facts of this case, when weighed against other factors, the existence of such expectations was not sufficient to justify a permanent RRO.

Accordingly, the Appellants’ appeal against the discharge of the RRO was dismissed.  What’s next? The case has been appealed to the Court of Appeal. Pending that appeal hearing, an interim reporting order is in place.

This post originally appeared on The Injunctions Blog and is reproduced with permission and thanks 


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