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Employment Law

Legal guidance - compliance - software

Veale Wasborough Vizards , 26 MAY 2015

Embarrassing or damaging material does not justify a permanent anonymity order

Embarrassing or damaging material does not justify a permanent anonymity order
Amaya Floyd
Associate, Veale Wasbrough Vizards

The Employment Appeal Tribunal (EAT) held that the Employment Tribunal (ET) was wrong to grant (and subsequently refuse to set aside) a permanent anonymity order in BBC v Roden.

An anonymity order can prevent or restrict information made public if a judge considers it to be in the interest of justice. In making an anonymity order, sufficient weight needs to be given to the principle of 'open justice', balancing the competing human rights under Article 6 (the right to a fair hearing), Article 8 (the right to private and family life) and Article 10 (the right to freedom of expression) of the European Convention on Human Rights (ECHR). 

The facts

Mr Roden was employed by the BBC on a fixed-term contract when the BBC became aware of three serious allegations of sexual assault against him. The BBC reported these allegations to the police who confirmed that they held information regarding Mr Roden and considered that he could pose a risk to young men where he worked.

The complainants wished to remain anonymous, so the BBC investigated the allegations without giving Mr Roden any specific details. He denied any inappropriate behaviour. It was only at a second meeting, when the BBC confirmed that it felt unable to renew his fixed-term contract due to the serious allegations that he gave an account of a different incident in a former employment, which he thought the allegations related to. He explained that whilst a report had been made to the police at the time, his name had been cleared and that no further action had been taken. 

The ET claim

Mr Roden brought an unfair dismissal claim, as well as a number of other related claims. Even though Mr Roden was not informed of and given the opportunity to deny the specific allegations that were behind the reason for his dismissal, the ET found the decision to dismiss him to be fair and reasonable in all the circumstances.

Previously, unbeknownst to the BBC, information emerged at the hearing that Mr Roden had been dismissed from his former employment for gross misconduct. The ET found that Mr Roden had misled his employer and that this amounted to a fundamental breach of his employment contract. 

However, the ET granted a permanent anonymity order to protect Mr Roden's identity as the proceedings would hear allegations relating to sexual assaults by Mr Roden which were not directly in issue. The ET was concerned that the public would be unable to distinguish between an unfounded allegation and a guilty verdict. 

In order to provide interested parties (Disclosure and Barring Service, police, etc) with a copy of the ET judgment, the BBC made an application to set aside the anonymity order. The ET refused the application and the BBC appealed.

The appeal

The EAT allowed the appeal and set aside the anonymity order. It held that the principle of open justice was one of paramount importance and that the ET had failed to properly balance all the parties' interests when first making the order and then in refusing to set it aside. The EAT held that the ET had only focused on the reputational damage that Mr Roden may suffer, putting too much importance on Mr Roden's Article 8 right.

In considering Mr Roden's right to a private life, the EAT noted that Mr Roden had brought his claim in a public forum, knowing he had been dishonest with the BBC and that he would have been fully aware of the risk of making these facts public.

The EAT considered that the ET had failed to take into account the BBC's right to freedom of expression. It held that there were a number of relevant bodies with a strong interest in the outcome of the case, particularly given the potential risk to young men, and that the BBC had a right to publicise the ET's findings on its decision to dismiss Mr Roden without limitations. It also considered that future employers have the right to be aware of these facts as Mr Roden had clearly misled and been dishonest with the BBC.

The EAT held that the public were able to distinguish between unproven allegations and proven charges.

Best practice

This case is very fact specific but shows that public interest and open justice can outweigh an individual's right to a private life and the importance of an ET taking this into account when considering applications for anonymity orders.

It is interesting to note that the publication of embarrassing or potentially damaging material relating to an employee or an employer is not always in itself a good reason to impose an anonymity order.

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