Appeal No. UKEATPA/0659/12/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
17 June 2013
Before
HIS
HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
F APPELLANT
G RESPONDENT
Transcript of Proceedings
JUDGMENT
RULE 3 (10) APPLICATION - APPELLANT ONLY
SUMMARY
PRACTICE AND PROCEDURE – Restricted reporting order
The Employment Judge correctly
applied the principles in ECHR Art 8 in continuing anonymity orders in
respect of the actors in this Employment Tribunal case, following earlier
directions of the EAT.
HIS HONOUR JUDGE McMULLEN QC
1.
This case is about the order of a Judge to proscribe the publication of
any identifying matter in relation to the Claimant and the Respondent and
others who were the actors in an Employment Tribunal hearing at Birmingham. I have pre-read the papers, which are substantial, and the additional
documentation provided to me this morning. I will refer to the parties as the
Claimant and the Respondent in respect of whom anonymity still remains in
place.
Introduction
2.
My account of the facts can be the shorter because I have had the
advantage of having read the Judgment of Underhill J, President in the same
case, under the same title UKEAT/0042/11. The facts as set out by the
President from the short chronology is that the Claimant made a claim of sex
discrimination and constructive unfair dismissal in respect of events occurring
in 2009. That case was heard by the Employment Tribunal in Birmingham in
February 2011 and resulted in an award in the Claimant’s favour, sent with reasons
on 11 April 2011.
3.
The Claimant appealed, she has been represented throughout by her family
friend, Mr Law, and on 21 September 2011 Underhill P, as he then was, continued
the orders in place and dismissed the grounds of appeal which were to do with
the extent to which identifying matters could be promulgated. There remained
one loose end as he put it from his conclusions which was: what would happen at
the end of the proceedings?
4.
The end of the proceedings was marked by a further hearing before the
same three-person Tribunal in Birmingham where the Claimant was awarded sums by
way of compensation for unfair dismissal and sex discrimination totalling a
little over £75,000, the reasons for which were sent on 9 February 2012.
5.
The loose end was tied by Employment Judge Findlay sitting alone when
she made an order effectively continuing the restriction on the publication of
relevant details in an order sent to the parties on 14 March 2012. The
Claimant was dissatisfied and made an appeal expressly in the name of herself
and of Mr Law who were self identified as Appellants 1 and 2. As I understand
it, the basis for Mr Law’s engagement in the title of this case is that the
order made by Judge Findlay applied to him in terms.
6.
The appeal was put before HHJ David Richardson who found no prospect of
success in it and he said this:
“In this case an anonymity order to protection the article 8
rights of students and staff was upheld by the Appeal Tribunal last year (F
v G, 21 September 2011); the Appeal Tribunal itself made a similar order
(see para.60 of the reasons); and it was anticipated that a further order might
be made by the Tribunal (see para.61 of the reasons). The Appeal Tribunal’s
order was made in the full knowledge that the Claimant’s claim had succeeded.
It was not made to save the employer from embarrassment - it was made
principally to protect extremely vulnerable students.
A further order was indeed made by Employment Judge Findlay on 5
March 2012. The Appellants say that the Employment Judge gave as his reason
the article 8 rights of the Respondent’s staff and students. The Appellants
did not ask for written reasons as they should have done if they wished to
appeal (see rule 30 of the Employment Tribunal Rules of Procedure). They
waited until 23 April before lodging a notice of appeal; and they seek to
appeal without having asked for written reasons.
I do not think there are any reasonable grounds for appealing.
It seems to me that the Employment Judge was justified in making the Order for
the purposes of protecting the article 8 rights of highly vulnerable students
in the unusual circumstances of this case. The matter was aired fully in the
Appeal Tribunal last year. Nothing on the face of the order made suggests any
error of law on the part of the Employment Judge.
I have the power to request written reasons from the Employment
Judge (see rule 30 of the Employment Tribunal Rules) for the purpose of seeing
on what basis the Employment Judge’s discretion was exercised. I see no reason
to do so when (1) the issue has already been argued and has been the subject of
a fully reasoned decision of the Appeal Tribunal and (2) the Appellants have
not applied for reasons in good time and (3) the reason given orally - the
protection of the article 8 rights of students and staff - is readily
explicable in the light of the judgment of the Appeal Tribunal last year.
I fully sympathise with the Claimant’s psychiatric condition -
but I do not see how breaching the right of privacy of vulnerable students will
ameliorate her psychiatric condition, and the one page psychiatric report dated
16 November 2011 attached to the Notice of Appeal does not suggest that it
will.”
7.
The matter then came before HH Jeffrey Burke QC at a rule 3(10) hearing
where Mr Law again appeared and argued matters for about 45 minutes. The Judge
then decided that Employment Judge Findlay should be asked for her written reasons
and then the matter would be restored if practicable before Underhill J. This
order was made on 8 February 2013. An amendment to that order was made by
Judge Burke about the same time. The Employment Judge then produced her reasons
which extend for ten pages and were sent on 7 May 2013.
8.
The matter did not come before Underhill J because by now he had been
promoted to the Court of Appeal, nor did it come back, as the word implies,
before HH Jeffrey Burke QC, adjournment being in my view the treatment by the
same Judge of the same matter on a different date. There has been no
opportunity on the papers for the reasons of Employment Judge Findlay to be
considered by Mr Law. However, having noticed this problem and raised it with
Mr Law today, he has adventitiously been able to put before me a very detailed
response to Judge Findlay’s written reasons correlating by paragraph and pages
in the trial bundle his criticisms on behalf of the Claimant and himself of
Judge Findlay’s written reasons. So I am satisfied that Mr Law has had a full
opportunity in writing and orally to address the court on the now extant
written reasons.
9.
My approach to a hearing under rule 3 is set out in my Judgment in Cheema
UKEATPA/0250/12 which should be read with this; I make my own decision on this
oral reconsideration of the reasons given by Judge Richardson. I saw at once
that part of Judge Richardson’s opinion is superseded now by the giving of
reasons but as will become clear Judge Richardson was able to give his opinion
because Mr Law had set out the basis of his criticisms in clear terms in the
Notice of Appeal.
The Claimant’s case
10.
Both the Claimant and Mr Law argue that it is unfair for the orders to
be in place as they prevent them from engaging in activity which will, on their
account, protect vulnerable students in the position of X in this case, and
will provide a check on what he says are the unlawful activities of the
Respondent college in carrying out its policy and in failing to adhere to its
constitution.
11.
The way in which this attack is mounted is partly in relation to the
material that was before the President and partly in respect of new material
coming from an organisation or paying attention to an organisation called Sexual
Health and Disability Alliance (SHADA). The principal criticism is that the cat
is out of the bag for the Respondent itself has shared its own policy, the
subject of the criticism in this case, with this organisation. For that reason
the anonymity orders, the restricted reporting orders and so on which are in
place have effectively been breached by the Respondent. This is unfair for the
Claimant cannot even discuss this matter with her children as she wishes to do.
12.
The first thing to note is the way in which this is put in the Notice of
Appeal. It correctly points out that the Claimant is the victim and that she
has been awarded very substantial sums as a result of the wrongful treatment of
her by the Respondent. The contention is that the order made by the Judge is
for the sole purpose of preventing the Respondent being embarrassed because the
Respondent has been guilty of breaking the law and financial miscounting and
that the purpose of the Judge’s order was to protect it. The contention is
that there is no evidence that students of the college, other than X, have been
affected, there is a further contention that the constitution of the college
was not carried out and this is a breach of the law, and that the SHADA, a
fringe association with, it is said, discreditable membership has already had
access to the policy and these are new matters which were not before Underhill
P.
13.
The advantage given to Mr Law today is that he has been able to make
very many criticisms of the extant reasons now of Judge Findlay. I do not
propose to go through all of them but they can be categorised as an assertion
of the right of the Claimant to be able to say what she wants about this
problem, a criticism of the Judge for making factual errors, an assertion that
there is unfairness as between the Claimant and the Respondent and that the
effect of this order is all in favour of the Respondent.
Discussion
14.
The first thing to note is that the reasons of the Judge carefully posit
the engagement of Article 8 of the ECHR. The Judge was then required to
do the balancing exercise which had been identified by Underhill P and the
tests there. She said she followed them. She acknowledged that the student X
in this case was vulnerable. She also acknowledged the rights of other students
and the college itself in respect of Article 8 and of freedom expression under
Article 10. She correctly noted that that is a balancing exercise. She also
paid careful attention to the new matter which is the passing of the college’s
policy to SHADA and she deals with this in the following way:
“During June 2009, the claimant met with Ms P, who was carrying
out the independent investigation. The claimant had clearly expressed the
nature of her concern, page 174, when she expressed her reluctance to shower the
student so soon after the assisted procedure, and that because was being asked
to shower X so soon afterwards, that she felt that she was being involved in a
sexual act. At page 175, she was asking for an agreed period of time to elapse
before being required to shower a student in those circumstances. Ms P records
that the claimant felt the college was not listening, yet Ms P herself did not
directly address the claimant’s concern regarding how soon after the process
she was being asked to shower X in her conclusions, although we note that she
does recommend that there should be consideration of introduction of timescales
after known sexual activities at paragraph 2 of her Recommendations. See page
178.”
15.
She returns to the matter when considering the arguments about the
exposure of this material to SHADA but she formed the judgement that there were
differences between the policy at the school and SHADA’s material. Even so there
was in the balance nothing by reason of SHADA’s involvement in favour of lifting
the order.
16.
As to the criticism’s of the Judge for making factual errors, they do
not raise questions of law to this court which may only hear questions of law
and these are questions of fact. The Judge had fully in mind the live evidence
which she heard from Mr C, the relevant officer of the Respondent and the way
in which matters were put by Mr Law and the Claimant.
17.
It was plain to the Judge and is plain to me that there is more to the
Claimant’s case than her vindication in the form of Judgments in her favour and
substantial compensation. The Judge noted what was said on behalf of the
Respondent that the Claimant wanted a public enquiry into the Respondent’s
practice. It was plain to the Judge that there was more to this than what the
Claimant had advanced about her own employment rights.
18.
There is one short matter I can deal with it on its own which is the
repeated complaint by Mr Law that the Employment Judge did not mention Article
12. I am mystified by this for this case is nothing to do with the Claimant’s
right to marry.
19.
In my judgment the Claimant has shown that she was treated badly and
unlawfully by the Respondent, she had judgment in her favour, it has not been
overturned by the EAT and she has obtained and been paid the sums awarded to
her to vindicate her rights. In my opinion the Employment Judge was correct to
make the orders which she did, I can see no error of law in her approach or to
her principles, she carried out the balancing exercise as was required and the
balance came down in favour of the protection of anonymity in favour of
students, staff and the college itself. There is nothing wrong in principle in
the exercise which she undertook or in the conclusion which she reached.
20.
Finally, since Mr Law reminded me of it four times, I have borne in mind
that he is a lay person running his own business and not a lawyer. It is no
discredit to him that he has put this case most carefully in the written
materials, his note on the Judgment today and in his very extensive skeleton argument.
The Claimant in this case need feel no disadvantage at having been represented
by Mr Law in the way that the material has been put forward.
21.
The application is dismissed and with it the underlying appeal. The
orders made by the Judge will remain in place.
