Power to grant statutory anonymity in relation to alleged sexual offences only applies where there are criminal allegations
The Employment Appeal Tribunal (EAT) has found that a claimant in Employment Tribunal proceedings was not entitled to lifelong anonymity in circumstances where a sexual offence is alleged in civil but not criminal proceedings.
Background
Under the Sexual Offences (Amendment) Act 1992 (the Act), the identity of an alleged victim of sexual offences must not be made public where the allegation is made in the context of potential criminal proceedings. Where Employment Tribunal proceedings involve alleged sexual offences, the judge has the power to grant parties anonymity, or to make a restricted reporting order in cases involving sexual misconduct.
Anonymity and restricted reporting orders issued at preliminary hearing
In the case of Z v Commerzbank AG, the claimant brought claims which included allegations of sexual assault and harassment against him by a colleague. The claimant did not allege that the conduct against him was a criminal offence. At a preliminary hearing, the Tribunal found that the claimant was indefinitely entitled to anonymity under the Act. The Tribunal made anonymity and restricted reporting orders in respect of both the claimant and the alleged perpetrator. The orders were to last indefinitely in respect of the claimant, but were time limited for the alleged perpetrator.
Claimant loses at liability hearing
At the liability hearing, the Tribunal found the claimant's evidence to be false, and dismissed his claims. Following the judgment, the respondent applied to lift the anonymity order and reporting restriction order in respect of the claimant, and to indefinitely extend the orders in respect of the alleged perpetrator. The Tribunal agreed and the claimant appealed, arguing the Tribunal was wrong to withdraw the protection of the Act.
EAT decision
The EAT dismissed the appeal, holding that the claimant was not entitled to an anonymity or a restricted reporting order. The protection afforded under the Act applies to actual or potential criminal allegations. It does not include allegations made in civil courts or Tribunals alone.
Often, the requirements of the Act will be satisfied where an allegation is made to the police before the same conduct is then referenced as part of an Employment Tribunal claim. In this case, the claimant had never suggested a criminal offence was committed against him. Having found the claimant's evidence in respect of the allegations to be false, the Tribunal was justified in revoking the orders and this did not compromise the claimant's human rights.
Learning points
This case represents the first detailed examination of the link between the Act and the Tribunal's powers to protect party anonymity and to make restricted reporting orders. It demonstrates how the Tribunal's powers apply only where a sexual offence has been formally alleged in potential or actual criminal proceedings.