Protecting privacy in disability cases

At Farore Law, we are experts in obtaining orders to protect our clients’ privacy and anonymity where necessary, including under rule 50 of the Employment Tribunal (“ET”) Rules of Procedure (“the ET Rules”).

We are currently representing a Claimant in an upcoming ET Preliminary Hearing where the ET will decide whether to grant the Claimant an anonymity and restrictive reporting order (“RRO”) under rule 50, on the basis that it is a disability case containing extremely sensitive medical records, which, if made public, could constitute an interference with the client’s private life and undermine their reputation. 

This article provides an overview of the law behind rule 50 applications in disability cases, as well as practical points to consider when making such an application.

The legal framework

Rule 50

Rule 50 of the ET Rules empowers the ET to make various types of order to prevent or restrict the public disclosure of any aspect of proceedings so far as necessary “in the interests of justice or in order to protect the Convention rights of any person”. Employment Tribunals can also sit in private in the circumstances identified in section 10A of the Employment Tribunals Act 1996. This provision protects from public disclosure certain forms of confidential information and/or where there may be a statutory restriction on disclosing certain information.

Examples of orders that an ET may make under rule 50 include:

– An anonymity order, which prevents a witness or individuals referred to in a judgment being identifiable by the public;

– An RRO within the terms of sections 11 and 12 ETA 1996;

– An order that a hearing that would otherwise be in public be conducted, or partly conducted, in private.

Although rule 50(3) lists the types of orders an ET may make under rule 50, the list is non-exhaustive. Rule 50 therefore confers to the ET broad and flexible powers relating to privacy and restrictions on disclosure.

Rule 50(2) of the ET Rules states that in considering whether to make a rule 50 order, “the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.” The starting point in a rule 50 application is the importance of freedom of expression and open justice when considering granting a privacy order.

Given that a rule 50 order is a derogation from the principle of open justice and freedom of expression, “the burden of establishing any derogation…lies on the person seeking that derogation. It must be established by clear and cogent evidence that harm will be done by reporting to the privacy rights of the person seeking the restriction on full reporting so as to make it necessary to derogate from the principle of open justice”; Simler J in Fallows v News Group Newspapers Ltd [2016] ICR 801.

Case law from the European Court of Human Rights (“ECtHR”) will be relevant in determining whether a right under the European Convention on Human Rights (“ECHR”) has been infringed. In Vicent del Campo v Spain (App. No. 25527/13), the ECtHR held at §40 that the concept of private life (under Article 8 ECHR) “extends to aspects relating to personal identity, such as a person’s name and physical and moral integrity, as well as to reputation and honour”.

Where the rule 50 applicant has mental health issues, the ET must not readily dismiss the risk of self-harm and suicide to those involved in challenging events, even in hotly contested litigation.

Section 12 of the Employment Tribunals Act 1996 (“the ETA”) grants the ET the power to make a RRO in cases involving disability, where “evidence of a personal nature is likely to be heard by the employment tribunal hearing the complaint”. Evidence of a personal nature is defined in section 12(7) as “any evidence of a medical, or other intimate, nature which might reasonably be assumed to be likely to cause significant embarrassment to the complainant if reported”.

Practical points

When seeking a rule 50 order in a disability case, applicants should consider:

– Whether the applicant’s disability is already in the public domain. If it isn’t, then the applicant’s Article 8 ECHR rights are potentially infringed by the public disclosure of his disabilities. The EAT in F v J [2023] EAT 92 provides an important reminder that the existence of a claim in the ET does not automatically enter the public domain by virtue of it being presented as such, still less the contents. An ET claim only becomes public when a public hearing (an Open Preliminary Hearing or a final merits hearing) takes place.

– Obtaining medical evidence to support the need for an anonymity order – such as a letter from the applicant’s GP addressing the adverse impact that public disclosure of the applicant’s personal health records might have on the applicant. This is particularly relevant where the applicant has mental health issues and is able to show that the failure to grant a rule 50 order would lead to the worsening of his/her mental health; see LQP v City of York Council [2022] EAT 196 at §§30-33.

– The applicant must demonstrate that there is evidence of a personal nature. One example is to provide the ET with a copy of the applicant’s medical records and a short witness statement explaining why the claim in question involves evidence of a personal nature. The witness statement should also explain why the applicant’s Article 8 ECHR are engaged and why there is no public interest in details of the applicant’s medical records (or alternatively their identity) being made fully public.

In addition, an applicant should carefully consider what order they are seeking. Under rule 50, the ET has a broad discretion ranging from ordering that a hearing should be wholly or partially conducted in private (which are extreme derogations from open justice and freedom of expression) to less intrusive measures such as granting anonymity to a witness. An applicant has a higher likelihood of obtaining a rule 50 order where the terms sought strike a balance between protecting the individual’s privacy rights whilst not unjustifiably interfering with the principle of open justice or freedom of expression.

For example, in Q Ltd v L [2020] ICR 420, the Court of Appeal held that a Tribunal went beyond its powers by ordering redactions to the disabilities and the consequences of those disabilities, on the basis that doing so would fundamentally undermine the public’s understanding of the ET judgment. On the facts, the ET could not justify any redactions beyond the anonymisation of the witnesses and other individuals referred to in the judgment by random initials, and other redactions reasonably necessary to preserve the anonymity of the individuals concerned. 

Furthermore, in considering what orders an applicant is seeking to obtain under rule 50, consideration must be given to the limitations that certain privacy orders might have. For example, obtaining a RRO on its own might be insufficient to protect a witnesses’ privacy rights. RROs made by the ET typically expire upon promulgation of judgment, which means that all details relating to a case may subsequently be reported.

Although it is possible to obtain an indefinite RRO, a party might prefer to seek anonymity instead, as it is still possible for a party’s identity to be disclosed to the public under a RRO. Indeed, Tribunal judgments are publicly available online and with the advent of search engines and social media, it can be possible for individuals to circumvent a RRO.  

To that end, a professionally represented applicant should send the Tribunal a draft order ahead of the preliminary hearing so that the Employment Judge has a clear idea of the nature of the rule 50 application being sought. Being able to identify the precise order being sought and the reasons it is needed may minimise the risk of the ET finding that the application is an unjustified derogation from the principle of open justice or the right to freedom of expression.