AEL v Flight Centre (UK) Ltd
[2024] EAT 116
A v Choice Support (formerly MCCH Ltd)
16 February 2023
[2023] EAT 18
Employment Appeal Tribunal
Someone accused their coworker of rape. The court decided to keep both people's names secret to protect the accused coworker's mental health, but didn't issue a broader order blocking all reporting on the case, since the secret names were considered enough protection.
Key Facts
- •A Claimant alleged that EA (a colleague) raped her.
- •The Employment Tribunal (ET) found the sexual act began consensually but became non-consensual.
- •The Claimant withdrew her police statement.
- •EA's mental health significantly deteriorated after the allegation.
- •Various ET orders granted anonymity and restricted reporting.
- •The Claimant appealed against the permanent restricted reporting order.
- •EA intervened, arguing the order's removal would be catastrophic for his mental health.
Legal Principles
Employment tribunals must distinguish between Section 11(1)(a) and (b) of the Employment Tribunals Act 1996 and the broader Rule 50 powers when ordering anonymity or restricted reporting.
Employment Tribunals Act 1996, Section 11(1)(a) and (b); Employment Tribunal Rules 2013, Rule 50
Restricted reporting orders prohibiting publication of case details should be permanent only if less restrictive orders are insufficient.
Judge's reasoning
The EAT, when considering Rule 23 orders, must consider ET orders but also other factors.
EAT Rules 1993, Rule 23
Open justice is a key principle, only overridden by exceptional cases with clear and cogent grounds justifying derogation, which must be strictly necessary.
Curless v Shell International [2019] EWCA Civ 1710 (obiter)
Article 8 ECHR (right to private life) and Article 10 ECHR (freedom of expression) must be balanced; proportionality is key.
European Convention on Human Rights, Articles 8 and 10
Section 1 of the Sexual Offences (Amendment) Act 1992 prevents publication of identifying information about complainants in sexual offence cases.
Sexual Offences (Amendment) Act 1992, Section 1
Section 5 of the Sexual Offences (Amendment) Act 1992 allows a complainant to give written consent for publication, providing a defence for the publisher, not a right of waiver for the complainant.
Sexual Offences (Amendment) Act 1992, Section 5
Outcomes
The EAT upheld the anonymity of the Claimant and EA.
To protect EA's Article 8 rights (right to private life), given the serious nature of the allegations and his vulnerable mental health. The judge also considered the risk of 'jigsaw identification'.
The EAT made a permanent anonymity order for the Claimant, EA, and EA's parents.
The risk of 'jigsaw identification' and the potential for further damage to EA's mental health outweighed the principle of open justice in this specific case.
The EAT did not make a restricted reporting order.
The EAT judged that the anonymity order, if sufficiently restrictive, would suffice to protect EA's privacy. A restricted reporting order was deemed unnecessary.