Open justice v personal privacy – guideline court of appeal ruling

Sydney Mitchell LLP

The principle of open justice and the requirement that judicial decisions be published for all the world to see can create an obvious conflict with individual privacy rights.

That issue arose starkly in a case concerning a disabled employee who wished to keep his involvement in tribunal proceedings a closely guarded secret (L v Q Limited) says Emma-Louise Hewitt, Head of Employment Law at Sydney Mitchell LLP.

After lodging complaints of disability discrimination, victimisation and harassment against his employer, the man argued successfully before an Employment Tribunal (ET) that the proceedings should be held in private, that the names of the parties and witnesses should be anonymised – appearing in the form of initials only – and that the judgment, when given, should not be placed on the public register.

After the employer challenged those orders, the Employment Appeal Tribunal (EAT) ruled that the anonymisation of the parties and witnesses should be maintained, but that its own judgment, and that of the ET, should be placed on the register with any redactions required to ensure that the parties would not be identifiable.

In appealing against the latter decision, the man cited his right to privacy and argued that he would suffer extreme anxiety and embarrassment were the tribunal decisions published.

However, in rejecting his appeal, the Court of Appeal found that, with the exception of cases involving issues of national security, it was hard to imagine circumstances in which it would be right for an ET to withhold publication of a judgment altogether. Keeping the relevant decisions secret would not merely be contrary to the principle of open justice but would create practical difficulties.

The individuals whom the man had accused of harassing, victimising or discriminating against him should surely be permitted to see the decisions as a matter of elementary justice.

The Court expressed very serious doubts as to whether the ET hearing should have been conducted in private and rejected arguments that the decisions should be further redacted so as to remove references to the man's disabilities and their consequences.

Such redactions would amount to wholly unjustifiable censorship and would fundamentally undermine public understanding of the decisions.

Also rejected were arguments that, rather than requiring publication of the decisions, the EAT should have given the man the option to withdraw his claim after he received a draft copy of its ruling.

The Court expressed the hope that the parties would, in the light of its judgment, agree redactions to the decisions that were reasonably necessary to preserve anonymity.

The man did not appeal against the EAT's substantive decisions on his case. For help and advice please contact Emma-Louise Hewitt on 0808 166 8860 or email your enquiry to