Anonymisation in employment tribunal cases

In light of a recent EAT ruling, Beth Hullah explains when employers can justify obtaining an anonymity order when defending a tribunal claim

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Most tribunal hearings are public forums, and judgments are now published online for anyone to see. This can sometimes work in an employer’s favour, however if the judgement goes against them, this could cause significant reputational damage and/or result in commercially sensitive information being in the public domain. It is therefore easy to see why many employers may wish to apply for anonymity orders when defending tribunal claims.

However, in the recent case of Frewer v Google UK Limited and Others [2022], the Employment Appeal Tribunal (EAT) considered the limits on its ability to make an anonymity order.

In this case, Mr Frewer’s employment was terminated by Google following allegations of sexual harassment. Frewer brought tribunal claims against Google, including unfair dismissal and whistleblowing claims. He alleged that Google had engaged in anti-competitive behaviour in ensuring that its two main clients received a disproportionate amount of hits when users searched for information about holidays. 

As part of the proceedings, Google requested that its commercially sensitive information (including the client names) should be redacted/anonymised from tribunal documents and the judgement. The tribunal allowed this request, stating that the identity of Google’s clients and the commercially sensitive information was irrelevant to the issues of the case. 

The case was appealed to the EAT, which held that the tribunal had erred in its approach and that the orders granting the redaction and anonymisation of these documents could not stand. Specifically, it held that the tribunal had failed:

  • to adequately consider the principle of open justice including the right for the public to view hearings and scrutinise decisions. This was important in this case given Frewer’s allegations about Google’s practices and the fact that the media should have been allowed to report on the names of the people involved;

  • to consider the importance of including the names of individuals substantially involved in the legal proceedings. This was important as there was a strong argument the public would have a genuine and legitimate interest in knowing the identity of the clients who were said to have been given an advantage;

  • to have given insufficient attention to the competing rights of Articles 6 (the right to a fair hearing) and 10 (the right to the freedom of expression) of the Human Rights Act 1998.

While the EAT appreciated that there may be issues of commercial sensitivity (ie, Google not wanting to involve its two top clients), it did not consider the “commercially sensitive” information in this case to amount to confidential information that could have been anonymised.

The case was remitted back to the tribunal.

This case acts as a stark reminder that when defending employment tribunal claims, employers will only be able to justify the departure from the principle of open justice in limited circumstances. Applications for anonymity orders should be the exception rather than the norm, and overall, should only be used in very specific circumstances, for example, where it is necessary to protect genuine confidential information; is in the interests of justice; or where it is required to protect an individual’s human rights or sensitive personal data.

In practice, employers normally want to apply for anonymity orders to protect their reputation and/or to protect their clients, customers or employees. However, this case highlights that such reasons may not be adequate and therefore employers need to be prepared for and consider this when deciding whether to continue to defend an employment tribunal claim. 

Employers will also need to justify any attempts to obtain an anonymity order and explain why departing from the principle of open justice is appropriate and necessary in the circumstances. 

Beth Hullah is an employment solicitor at Coffin Mew