AEL v Flight Centre (UK) Ltd
[2024] EAT 116
F v J
1 June 2023
[2023] EAT 92
Employment Appeal Tribunal
A lecturer with autism sued his university. He asked the judge to keep his name secret to protect his job prospects, but the judge refused. A higher court said the first judge made mistakes and sent the case back to be decided again by a different judge, who will now consider the request for secrecy.
Key Facts
- •The claimant, a university lecturer with autism spectrum disorder (ASD), brought multiple disability discrimination claims against his former employer.
- •The employment tribunal refused the claimant's application for an anonymity order.
- •The claimant appealed the refusal of the anonymity order to the EAT.
- •The respondent conceded that the grounds of appeal relating to the anonymity order were well-founded.
- •The EAT allowed the appeal and quashed the employment tribunal's decision.
Legal Principles
Open justice is a fundamental principle, but it must be balanced against an individual's right to respect for private life under Article 8 of the European Convention on Human Rights.
Ameyaw v PricewaterhouseCoopers Services Ltd [2019] IRLR 611, Millicom Service UK Ltd v Clifford [2023] EWCA Civ 50
The burden of establishing a derogation from open justice lies on the person seeking the derogation; clear and cogent evidence of harm is required.
Ameyaw v PricewaterhouseCoopers Services Ltd [2019] IRLR 611
The fact of bringing a claim does not automatically place the claim's contents in the public domain.
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, regulation 14(1)
A fair opportunity must be given to present evidence in support of an anonymity order application.
None explicitly stated, but derived from principles of fairness and natural justice.
The EAT's power on remittal is limited to what the tribunal could do.
Section 35 Employment Tribunals Act 1996
The test for apparent bias is whether a fair-minded and informed observer would conclude there was a real possibility of bias.
Magill v Porter [2001] UKHL 67
Remittal to a different judge may be appropriate if the original judge has already formed a firm view on the matter.
Sinclair Roche & Temperley v Heard & Fellows [2004] IRLR 763
Outcomes
The EAT allowed the appeal.
The employment tribunal erred in refusing the anonymity order by wrongly assuming the claim was already in the public domain, failing to allow the claimant to present evidence, and making unfair inferences.
The employment tribunal's decision was quashed.
The errors of law materially influenced the decision.
The matter was remitted to the employment tribunal for a fresh decision.
A fair opportunity for both parties to present evidence is necessary.
The EAT directed that the anonymity order application be considered by a judge other than Employment Judge Brewer on remittal.
To avoid the appearance of bias, given Employment Judge Brewer's previous decision and the potential for pre-judgment.