Disability and privacy rights – when can the Tribunal grant you anonymity?

Farore Law regularly acts for Claimants in disability discrimination claims, often acting for senior executives in the City with neurodiverse conditions or mental health conditions such as depression and anxiety. An issue that invariably arises when advising a Claimant in a disability discrimination claim is whether the sensitive nature of the case warrants an application for a privacy order under rule 49 of the ET Rules 2024.

Many Claimants simply would not want the world-at-large to know of their medical conditions and would understandably have concerns about their future employability prospects if their medical conditions are disclosed, due to the inherent stigma attached to disabilities.

The mere fact that a Claimant is required to disclose their medical records in a disability discrimination claim, however, does not automatically entitle them to anonymity or any other rule 49 order (e.g., a private hearing). Much will depend on whether the Claimant’s rights under Article 8 ECHR (the right to private and family life) are engaged and the extent to which this would interfere with the principle of open justice.

F v J [2025] EAT 34 is a recent EAT decision which illustrates how a Tribunal made an error of law in refusing to grant the Claimant anonymity in his disability discrimination claim, despite the Claimant’s wish to keep his disability private. 

Background

F, a university lecturer, had Asperger’s Syndrome and had concealed the fact that he was disabled throughout his entire working life from both his family and employers, although he had made it known to the Respondent. 

F was concerned that if his disability was made public, it would have a serious adverse effect on his future employability. F also did not want his family members to become aware of his disability. F stated that he would not proceed with his claim absent an anonymity order being granted by the ET.

The ET refused to grant F an anonymity order, finding that F had failed to demonstrate that his fears were founded on objective evidence; and that in any event, his subjective concerns were not well founded.

F appealed to the EAT and was successful.

The EAT’s decision

The EAT held that the ET set too high a bar for F to surmount. It noted that it is “inherently impossible to prove what will happen in the future. Medical and psychological evidence could well demonstrate the extent of the claimant’s disability, but could not possibly address the issue whether autism carried with it the stigma that the claimant asserted, and which gave rise to the fears which grounded his application”. The EAT went on to note that it is very impractical for any report to comment on whether a Claimant’s fears of future employability are well founded, since this would require “some sort of assessment as to employability across the entire secondary and tertiary education spectrum” and “a piece of experimental research”. 

Rather, the correct test has a lower evidential threshold. All that F had to prove is that he had a reasonable foundation for his beliefs.

On the facts, the EAT accepted that the open justice principle would not be undermined by the granting of any anonymity order. It observed that the identity of the parties is not critical to the public understanding of the case and in any event, the Claimant’s reasonable fears far outweigh the relatively minor interference with the open justice principle in this case.

What to take away

F v J highlights the practicalities of obtaining an anonymity order in a disability discrimination claim. A Claimant has to show that publicity would undermine their future employability prospects, or would otherwise interfere with their private and family life (for example, because they do not want their family and friends to know of their disabilities). Whether a Claimant’s fears are considered to be reasonable will largely depend on the evidence. In our experience, the following substantially strengthens a rule 49 application in a disability claim:

• It is vital that a Claimant produces a witness statement ahead of any Preliminary Hearing to explain why a rule 49 order is necessary in their case and why their fears are reasonable (as well as explaining why the Claimant’s Article 8 rights are engaged). For example, a Tribunal may be more persuaded by a Claimant that explains how they have sought to hide their disabilities from family, friends and prospective employers, as opposed to a Claimant who is otherwise very open about their medical conditions. A witness statement is particularly crucial as it will give the Respondent the opportunity to cross-examine the Claimant and enables the Tribunal to question the Claimant.
• A report or letter from a medical practitioner (such as a psychiatrist) commenting on how publicity could exacerbate the Claimant’s mental health could be persuasive in obtaining a rule 49 order. This is particularly the case in circumstances where a Claimant argues that in the absence of any anonymity order, they would withdraw their claim.
• The ease with which reasonableness is established will depend on the nature of the medical condition and the sensitivity of the medical records. For example, in cases involving severe mental health conditions, such as clinical depression or complex PTSD, or where medical records reveal a history of self-harm, a Tribunal is more likely to accept that these conditions could stigmatise a Claimant in the labour market.

Farore Law is a specialist boutique employment litigation firm that specialises in complex, high-value employment disputes. Contact us if you need help.