Claimant who reasonably believed disclosing disability would harm future career entitled to anonymity order
The Employment Appeal Tribunal (EAT) has found that a tribunal applied the wrong legal test in assessing a claimant’s request for anonymity in a disability discrimination case.
Background
Employment tribunals can, in limited circumstances, make orders to protect the identity of parties or limit what can be reported publicly. These include anonymity orders (which prevent publication of a party’s name or identifying details) and restricted reporting orders (which limit the reporting of sensitive case information). Such measures are only granted where the need for protection outweighs the public interest in open justice.
In F v J, the claimant, a university lecturer, brought a disability discrimination claim after disclosing he had autism spectrum disorder (Asperger’s Syndrome) to his employer. He sought an anonymity order on the basis that public disclosure of his condition could damage his future employment prospects and cause disruption if he worked in a school setting. His application was supported by a detailed witness statement and academic research on the impact of disclosing autism in the workplace.
Employment tribunal decisions
The tribunal initially rejected the application, citing the principle of open justice. Although that decision was overturned, a second tribunal also refused the order. It questioned the relevance of the claimant’s evidence, particularly as it relied on US-based research, and noted the absence of medical evidence of likely harm. It also pointed to the fact that the claimant had since found new employment.
EAT decision
The EAT allowed the appeal, holding that the tribunal had applied too high a threshold by requiring objective proof of harm. The correct test was whether the claimant had a genuine and reasonably held belief that disclosure would be damaging. The EAT found this test was met and criticised the tribunal for failing to properly engage with the supporting evidence. It also noted that the claimant’s new role did not undermine his case, particularly as there was no indication his condition had been disclosed.
Anonymity for both parties was granted, with the EAT confirming that open justice would still be served through publication of the full facts, even without naming the individuals involved.
Comment
This decision confirms that anonymity orders, while rare, may be granted where a claimant has a reasonable belief that disclosure could cause harm. It also reinforces the importance of tribunals applying the correct legal threshold when assessing such applications.