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The Employment Appeal Tribunal (EAT) has confirmed that an Employment Tribunal (ET) can consider whether a restricted reporting order (RRO) can be varied or revoked even after a claim has been withdrawn.
In CA, RA, RB and RC v News Group Newspapers Ltd, CA was formerly employed by RA and RB to provide hairdressing services to RC. He was dismissed from his employment and brought claims against RA, RB and RC in the ET for unfair dismissal and unlawful sex discrimination. His claim included allegations of sexual misconduct.
All claims were denied by RA, RB and RC and they applied for various privacy orders. Their applications were refused.
RA, RB and RC appealed to the EAT and anonymity orders previously made by another employment judge were maintained pending the appeal.
Meanwhile, News Group Newspapers Ltd (NGN) sought information as to whether an RRO was in place in relation to the matter. Upon notice of this enquiry, an employment judge immediately convened a telephone preliminary hearing (PH) at which he made an RRO 'in order to hold the ring because of the pending appeal'. NGN's representative was informed that there would be a further PH at which NGN could apply for the RRO to be lifted/varied.
A settlement was subsequently reached between the parties and both CA's claim and the appeal were withdrawn. Prior to the claim being dismissed, NGN applied to the ET for the RRO to be revoked or discharged. NGN also argued that the RRO ceased to have effect upon the withdrawal of the claims. CA, RA, RB and RC objected.
The ET held that:
the ET retained jurisdiction, even after withdrawal of the claim, to consider and determine the application to vary or revoke the existing RRO;
the RRO had not automatically lapsed when CA's claim was withdrawn; and
on the basis of a fresh balancing exercise between the right of respect for private and family life (Article 8 of the European Convention on Human Rights (ECHR)) and freedom of expression (Article 10 ECHR), the RRO should be revoked.
CA, RA, RB and RC appealed points 1 and 3 and NGN cross-appealed point 2.
The EAT agreed with the ET, holding that:
the ET had jurisdiction to consider an extant RRO notwithstanding the fact that the claim had been withdrawn on settlement;
the RRO did not automatically expire upon withdrawal since withdrawal brings only the claim, and not the proceedings, to an end. Unless otherwise specified, the RRO would have effect until a decision was promulgated, bringing proceedings to an end.
We have acted for many clients to have been concerned about the sensitive facts of their case. Privacy orders and RROs are, therefore, useful methods of ensuring that matters remain undisclosed.
However, this case highlights the effect that a settlement and subsequent withdrawal of a claim can have on an RRO. Although an RRO does not automatically lapse upon the withdrawal of a claim, it will not normally last beyond the end of the proceedings (ie when judgment is given or the claim is dismissed following withdrawal) unless the tribunal explicitly orders that it should.
In deciding whether to continue an RRO, the ET will consider the fundamental principle of open justice and conduct a balancing exercise between Articles 8 and 10 of the ECHR.
An alternative route for parties to ensure privacy is to seek a High Court injunction.
This case is being appealed to the Court of Appeal and we will keep you updated.