Legal Battle Over Anonymity, Holiday Pay, and Costs: Insights from EAT Case Z v Commerzbank AG & Ors
Introduction
In the Employment Appeal Tribunal (EAT) case of Z v Commerzbank AG & Ors, presided over by The Honourable Mr Justice Kerr, several key legal topics were discussed, anchored on principles of anonymity, holiday pay entitlement, costs incurred in employment and appeal proceedings, and the overarching principle of open justice. This case provides a blueprint for situating tribunal claims within the complex interplay of statutory provisions and common law principles.
Key Facts
The appeal revolved around a claimant, referred to as Z for anonymity purposes, whose original claims of discrimination were dismissed by the London Central Employment Tribunal on the basis of being falsified. Z appealed on three grounds: the revocation of an anonymity order, dismissal of a holiday pay claim, and the justification of a costs order against him. The case’s legal analysis spanned statutory interpretation of the Sexual Offences (Amendment) Act 1992 (1992 Act), the balance between open justice and personal privacy under the European Convention on Human Rights (ECHR), and the procedural correctness in awarding costs.
Legal Principals
Anonymity and Open Justice
The premise that the 1992 Act entitled Z to lifelong anonymity was a central issue. It was held that Section 1(1) of the 1992 Act, which offers automatic anonymity to complainants of sexual offences, refers to a formal allegation made in criminal proceedings. The EAT established a distinction between allegations made within the criminal justice system and those brought up in civil or tribunal proceedings, preserving the scope of the 1992 Act solely for the former. Z’s claim was not made to a criminal justice body, thus the 1992 Act did not apply.
Moreover, principles of open justice under the common law and the ECHR were upheld against the need for anonymity provided under Article 8, stressing that justice must be administered publicly and transparently. The Employment Tribunal Rules of Procedure 2013’s Rule 50 provides tribunal-specific grounds for derogating from open justice, requiring a strong justification, supported by the principle of minimum necessary interference.
Holiday Pay
The EAT supported the original tribunal’s application of the Working Time Regulations 1998 and its interpretation of the facts concerning Z’s use of alleged sick leave. The Employment Tribunal found the claim regarding converting annual leave to sick leave false, and the EAT upheld its decision to dismiss the holiday pay claim.
Costs
Regarding costs, the EAT applied Rules 76 and 84 of the ET Rules of Procedure, which permit a costs order against a party engaging in unreasonable conduct. The EAT found that Z’s conduct was unreasonable, yet in considering the amount of a costs order, the EAT held discretion under Rule 34B(2) to have regard to the paying party’s ability to pay. Though conceding Z’s impecuniosity, the EAT deemed a contribution towards costs justified.
Outcomes
The EAT dismissed the appeal on all grounds, affirming the tribunal’s revocation of anonymity, the dismissal of the holiday pay claim, and the costs order made against Z. Additionally, it ordered Z to pay a contribution towards the respondents’ costs of the appeal, setting a measure of responsibility for costs incurred due to his unreasonable conduct.
Conclusion
In conclusion, the EAT in Z v Commerzbank AG & Ors carefully navigated multiple legal waters to reinforce the supremacy of open justice, the specific remit of the 1992 Act within criminal proceedings, and the discretionary power of tribunals regarding costs. The case underscores the necessity of separating spurious claims from those with a foundation in reality, balancing individual rights against the interest of public justice, and ensuring that tribunals can exercise discretion in awarding costs against a backdrop of both reasonable conduct and the party’s ability to pay. The outcome underscored the criticality of transparency and honesty in legal proceedings, and served as a reminder of the nuanced considerations in applying legal principles to the facts at hand.