Is the risk of stigmatisation / reputational damage enough to convince an employment tribunal to grant an anonymity order?

When a claim is issued against an employer, often the first thing that springs to mind is the cost of instructing lawyers and potentially paying out large sums in compensation. One thing that often isn’t thought of in the first instance is the potential reputational damage that might be caused to an employer should it become involved in Employment Tribunal proceedings.

Most hearings in the Employment Tribunal are held in public, which means that the press and members of the public are able to attend and listen to the evidence and the judgments delivered. Following this, often the judgments are published on the Gov website where they can be easily accessed by simply entering a party’s name into a search engine. There are also countless articles published almost daily in newspaper tabloids that dissect Employment Tribunal decisions.

The Employment Tribunal does have discretion under Rule 50(1) of the Employment Tribunals Rules of Procedure to grant anonymity orders however this is often subject to a stringent balancing act in which the principle of open justice often prevails.

The Employment Appeal Tribunal (EAT) has recently considered anonymity orders in the case of A v Burke & Hare [2021] 10 WLUK 172 (EAT (SC)), which involved a request from a former stripper (A) to the Employment Tribunal to grant an anonymity order in respect of a holiday pay claim brought against her former employer.

In the Employment Tribunal, A had argued that should her name be included in the judgment, she would be at risk of verbal abuse, sexual violence, and that it would adversely impact her employment prospects due to the stigmatisation associated with her having worked as a stripper. The Employment Tribunal rejected A’s application and she appealed to the EAT.

The EAT upheld the Employment Tribunal’s decision not to grant the anonymity order. It was held that case law demonstrated that stigmatisation in the form of reputational damage was not sufficient to outweigh the principle of open justice, and that there was insufficient evidence that the harm alleged by A would materialise should her name be made public.

This judgment emphasises the importance placed on open justice by the Employment Tribunal. Unfortunately, an employer cannot prevent a claim from being issued against it and this judgment shows that there are very limited circumstances in which an anonymity order might be granted by an Employment Tribunal.

In some instances, an employer might welcome publicity to show that it is not afraid to defend itself against a claim brought against it, especially if it has successfully defended a claim.

However, there will be occasions where an employer might have made a mistake and is concerned about the reputational damage that might occur should an Employment Tribunal judgment bearing its name be published. Even if the employer is confident in how the matter was handled, it can often be damaging to have the employer’s name associated with any type of litigation, and particularly Employment Tribunal proceedings, which might deter potential employees from joining the employer, reduce morale within the workforce, or even encourage other employees to bring claims.

Should that situation arise, and one of the employer’s key outcomes is the protection of reputation, it is advisable for an employer to consider settlement of claims.

Often settlement is seen as the most commercial option for company’s faced with months of litigation, legal bills and the threat of a compensation award being made against it. However, settlement terms often also include the provision of confidentiality clauses which prevent the parties from being able to speak publicly about the circumstances giving rise to the claim, the terms and the existence of the settlement agreement.

Once the claim is settled and withdrawn by the claimant, the Employment Tribunal may publish a judgment online confirming that the claim has been withdrawn, however this provides very limited information and does not divulge the intricacies of the claim which might otherwise have been made public.

If you do have any queries in relation to the above please do not hesitate to contact a member of the employment team / Gemma Wilson at Glaisyers ETL on 0161 833 5689 or Gemma.Wilson@glaisyers.com

Gemma Wilson

Author Gemma Wilson

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