“What’s in a Name?” A Guide to Anonymity Orders in the Employment Tribunal

What can you do if an employment claim would be jeopardised unless a person was granted anonymity?

The answer may be to apply for an anonymity order under Rule 49 of the Employment Tribunal Procedure Rules 2024. Those applications, however, face procedural and substantive hurdles as illustrated by the recent EAT decision in F v J.^[1]

This article, written by pupil barrister Kyran Kanda, who is recently “on his feet” and taking instruction, hopes to clarify the process of applying for an anonymity order. He sets out (1) a summary of F v J; (2) the law; (3) the procedure; and (4) a checklist.

1. F v J

The Claimant was a university lecturer and suffered from Aspergers Syndrome. He sought an anonymity order because he believed that his future employability would be considerably reduced were his disability to be disclosed. The ET refused the application. It found that the Claimant had failed to demonstrate that his fears were founded on objective evidence, his subjective concerns were not well founded, and he had not provided evidence of a particular threat to his specific career prospects.

The EAT held that the ET had erred by applying “too high a test for the claimant to surmount” (§ 17). He did not have to prove objectively that his fears were well grounded. It was also unnecessary for him to provide medical evidence which could never have addressed the issue of whether autism carried with it the social stigma which the Claimant asserted. Instead, a claimant only needs to prove that he had a “reasonable foundation” for his belief, in this case the belief being that his future employability would be harmed by the stigma of autism.

The EAT found that, based on all of the material, the Claimant’s concerns were genuinely held by him, had an objective foundation and were reasonable. The identity of the parties was not critical to public understanding of the case. The interference with the principle of open justice was relatively minor. The EAT decided that both parties should be anonymised (§19-21).

2. Law

The power to grant an anonymity order is now found in Rule 49 of the Employment Tribunal Procedure Rules 2024. The key consideration for the Tribunal is whether the granting of an order is “necessary in the interests of justice or in order to protect the Convention rights of any person”. In reaching its decision, the Tribunal must give full weight to the common law principle of open justice and balance the competing human rights considerations, namely Article 8 (right to privacy) on the one hand and Article 6 (right to fair trial) and Article 10 (freedom of expression) on the other. The order must also be proportionate.

The Tribunal will follow a two-step process when considering anonymity applications.

Step 1 – Are the applicant’s Article 8 rights engaged?

Anonymity applications are not granted lightly. They are a derogation from the fundamental principle of open justice. As the well-known adage goes, justice should not only be done but seen to be done. As such, applicants must first demonstrate that the facts of the case engage their Article 8 rights. The most common bases upon which an anonymity order is sought are:

1. to avoid damage to the applicant’s professional or personal reputation (e.g. being identified as an alleged harasser: Vicent del Campo v Spain (Application No.25527/13) 2018 ECHR 909);
2. to avoid a risk of physical harm (e.g. a physical or verbal attack: Clifford v Millicom Services UK Ltd [2023] WL 00399733 (CA));
3. the applicant is vulnerable (e.g. they are transgender and suffer sensitive mental health problems: X v Y (2021) ICR 147, EAT, or they are a child: A v Secretary of State for Justice (2019) ICR D1, EAT); and/or
4. to protect commercial interests in certain circumstances (e.g. Queensgate Investments LLP and ors v Millet (2021) ICR 863, EAT).

It is a fact-sensitive inquiry whether Article 8 is engaged. The burden lies on the applicant to produce evidence of an interference with their Article 8 rights. This will most likely include a witness statement, outlining the impact that disclose of their identity would have on their professional and personal life and why it is in the interests of justice for an application to be granted. Applicants should demonstrate the risk of harm or the occurrence of actual harm by pointing, for example, to an impact on their relationship with colleagues, family and friends, damage to their professional reputation or job prospects (particularly if they are bound by a code of conduct), and/or impact to their health or personal safety. Corroborating evidence such as a medical report or evidence of job applications will be helpful.

Step 2 – The balancing exercise

The next task for the court is to balance the competing interests arising from Article 8 on the one hand and Articles 6, 10 and the common law open justice principle on the other hand.

In carrying out the required balancing exercise, the following three cases provide helpful general guidance:

1. In Fallows and ors v News Group Newspapers Ltd (2016) ICR 801 EAT, Eady P outlined the following principles (§ 49):
   1. the burden of establishing any derogation from the principle of open justice or full reporting lies on the person seeking that derogation;
   2. it must be established by clear and cogent evidence that harm will be done (by reporting) to the privacy rights of the person seeking the restriction on full reporting so as to make it necessary to derogate from the principle of open justice;
   3. where full reporting of proceedings is unlikely to indicate whether a damaging allegation is true or false, the Tribunal should credit the public with the ability to understand that unproven allegations are no more than that;
   4. where such a case proceeds to judgment, the Tribunal can mitigate the risk of misunderstanding by making clear that it has not adjudicated on the truth or otherwise of the damaging allegations.
2. In TYU v ILA Spa Ltd (2022) ICR 287, EAT (a case about a non-witness, non-party), HHJ Heather Williams KC identified the following matters as likely to require consideration (§ 81-82):
   1. The fundamental importance attached to open justice;
   2. The nature and extent of the restriction sought;
   3. The extent to which naming the applicant is in the public interest and relevant to the content of the judgment;
   4. The nature and strength of the applicant’s Article 8 rights;
   5. The extent to which the order sought would mitigate the impact on the applicant’s Article 8 rights;
   6. The extent to which less intrusive measures are possible.
3. In Clifford v Millicom Services UK Ltd, Warby LJ said:
   1. In considering ‘the interests of justice’, the Tribunal should consider r. 49(1) and the common law principles, when deciding whether to give precedence to any of the Convention rights (§ 29);
   2. The starting point on the open justice principle is that every court or Tribunal has inherent power to withhold information where it is necessary in the interests of justice to do so (§ 31). From there, the Tribunal should consider whether the derogations were justified by the common law exception.
   3. The decision-maker should consider the harm that disclosure would cause and, conversely, the extent to which the order sought would compromise the purpose of open justice (§ 43).

In light of that guidance, applicants may wish to argue the following points:

• The application sought is modest and/or limited in time;

• The application will not prevent reporting of the hearing nor the hearing itself being held in public;
• The application relates only to redaction/anonymisation of names. It does not affect the substantive text of the judgment. It will not impede intelligibility of the judgment. This is particularly true where the applicant is a non-witness, non-party;
• There is evidence allowing the Tribunal to make findings of fact about the strength of the applicant’s privacy rights. For example, is there evidence that damage to reputation has already been sustained through the applicant’s association with the claim or allegations made therein. Have there been complaints from service-users or results from a Google search of the applicant’s name? Have the applicant’s health or employment prospects been damaged or likely to be damaged? Is there evidence that the applicant is particularly vulnerable because of, for example, their age, transgender status, mental health, or being a whistleblower;
• The applicant would suffer prejudice if the order was not made greater than the respondent to the application would suffer if it was. For example, applicants may be forced to abandon part or all of the claim or defence if an order were not made. This would interfere with the overriding objective and the Tribunal’s ability to fairly determine the claims. By contrast, granting the order would have little to no impact on the respondent to the application fully presenting its case and cross-examining witnesses.

Respondents to the application might object to the arguments raised above. They could argue that the order sought is too wide, the interference with Article 8 is insignificant or exaggerated and/or the granting of the order would fly in the face of open justice and impede the right of the press to report on court proceedings. They should remind the court of the heavy burden an applicant faces to prove an order is necessary. It is possible respondents will take a neutral position to the application. In those circumstances, applicants must remember that they still hold the burden of proof.

The proportionality test

The balancing exercise also requires the applicant to show that the order sought is proportionate by applying the familiar test in Bank Mellat v Her Majesty’s Treasury (No. 2) [2014] AC 700 (§§ 20 and 74). Often, this boils down to whether a less intrusive measure could have been used. In the context of anonymity applications, the issue will be the extent of anonymity sought.

It could be said that there is a ‘sliding scale’ of anonymity. If the applicant is seeking redaction of their name only, it is difficult to envisage a less intrusive measure than that. The mischief comes from their name being referenced in the judgment so it must be redacted. If, however, the applicant also seeks redaction of additional names or information in the order, respondents may argue this is too wide and disproportionate.

The best argument for applicants is often that the additional information, such as the name of the employer or another party, must be removed in order to avoid the applicant being identified directly or indirectly, i.e. “jigsaw” identification. The purpose of an anonymity order would be undermined if the applicant’s identity could be deduced by astute use of search engines.

3. Procedure

The procedure for an anonymity application is relatively straightforward. Firstly, consider timing. An application should be made at the earliest opportunity. Ideally, at the same time as the tribunal claim form is submitted. It will be a matter of professional judgment and cost as to the best time to make the application but there should be no delay in applying once the decision is made.

Secondly, the application can be made to the Tribunal either in writing or orally at a hearing. If the application is made in writing, there is no prescribed form or format. It can be a letter or email addressed to the relevant Tribunal. The application should be copied to all other parties. The application should contain all of the material in the Checklist below.

Thirdly, the application can be made by one of the parties or any person with an interest in the proceedings, such as a witness, victim or third party. Applicants should take advice at an early stage as to the prospects of an application and how the granting or refusal of the application will affect the claim.

The Tribunal may consider the application on the papers alone or may list it for an oral hearing.

4. Checklist for making an anonymity application
   1. Consider at an early stage whether an application is necessary. Is a witness reluctant to give evidence because of genuine concerns about their Article 8 rights? Would the claim or defence collapse without the witness?;
   2. Identify precisely and specifically what documents you want to be anonymised and the extent of anonymity sought, e.g. the redaction or other anonymisation of the applicant’s name in any listing or any documents entered on the Register of Judgments or otherwise forming part of the public record (to include documentation prepared as part of the proceedings);
   3. Consider whether the redaction or anonymisation of any other information is necessary to avoid leading to the direct or indirect identification of the applicant, i.e. “jigsaw” identification;
   4. Identify clearly the grounds upon which it is said that the applicant’s Article 8 rights are engaged, for example damage to her professional reputation and career prospects;
   5. Gather evidence demonstrating a risk of, or actual, adverse impact on the applicant’s Article 8 rights, such as complaints from service-users or colleagues, unsuccessful applications for promotion or new job, unfavourable Google-search results, deterioration of relationships with family and friends, impact on health, mental health or personal safety, etc.
   6. Identify your arguments with respect to the balancing exercise, in particular prejudice, the overriding objective and proportionality;
   7. Draft and file the application promptly in a letter or email to the relevant Tribunal, including the evidence and information at points (ii) – (vi) above;
   8. Attach a Draft Order. Careful thought must be given to the terms of the order as it will itself be a matter of public record. It would defeat its purpose if it contained provisions that revealed, inadvertently or otherwise, the identity of the applicant;
   9. Serve the application on all other parties.

Conclusion

Anonymity orders are unusual and require careful consideration of the competing human rights arguments. Applicants could face an uphill battle, even in cases where the application is not opposed, to show that a derogation from the strongly held open justice principle is necessary and proportionate.

Respondents should consider whether they wish to oppose the application at all. It may be tactical to do so as keeping the applicant’s name as a matter of public record could dissuade them from pursuing an unmeritorious or vexatious claim. If the application is opposed, Respondent may raise a challenge to the extent of the order sought or the reasons for it. The grounds for the order may be speculative or exaggerated, or sufficiently minor that a derogation from open justice is not necessary.

Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. Please also note that this article represents the opinion of the author and does not necessarily reflect the view of any other member of chambers.

^[1] [2025] EAT 34