E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4113845/2021 Deliberations (following written submissions) on April 20225 Employment Judge W A Meiklejohn X v Represented by: Ms M Dalziel – Solicitor Y and 1 other — 2022

This was a closed preliminary hearing on competing applications for privacy-related orders under Rule 50. The claimant sought anonymity under Rule 50(3)(b). The second respondent sought a temporary restricted reporting order under Rule 50(1) and Rule 50(3)(d), and also asked for the judgment deciding those applications to be anonymised. The tribunal set out the statutory and Convention framework, including section 11 of the Employment Tribunals Act 1996 and Articles 6, 8 and 10 of the European Convention on Human Rights.

Applying the default position in favour of open justice, and the balancing exercise drawn from authorities including BBC v Roden and Re S (A child), the tribunal considered the parties' written submissions and their ET1 and ET3 positions. It noted that the underlying case involved allegations of sexual misconduct and that evidence at the final hearing would concern intimate details of the parties' sexual conduct. The tribunal found there was limited intrinsic public interest in a private employment dispute of this kind, and that there was a clear risk of reputational damage to both parties if the allegations were reported before liability had been determined.

The tribunal accepted that the claimant disputed that all of the sexual activity was consensual, but held that such evidence should be given without the prospect of media disclosure hanging over the hearing. It also treated the parties' arguments about possible effects on mental health and family life as speculative rather than determinative. On balance, it held that the second respondent's Article 8 rights outweighed the conflicting Article 10 rights for the purpose of a temporary restricted reporting order, and that a temporary order was preferable to the claimant's requested permanent anonymity.

The tribunal therefore granted the second respondent's temporary restricted reporting order, granted the request to anonymise the judgment, and refused the claimant's anonymity application. It said the issue of any further Rule 50 order was likely to be revisited at the final hearing.