Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 6511/17

 

CLAIMANT: BB

 

RESPONDENT: Department of Justice

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is:-

 

(i) The tribunal orders that the name of the claimant be anonymised, as set out above by the cypher "BB" and that her name be omitted from the register, pursuant to a Permanent Anonymity Order.

 

(ii) The tribunal made further Case Management Direction/Orders extending time for exchange of the respondent's witness statement to 3 May 2019.

 

 

 

CONSTITUTION OF TRIBUNAL

 

Employment Judge (sitting alone): Employment Judge Drennan QC

 

 

APPEARANCES:

 

The claimant appeared in person and was not represented.

 

The respondent was represented by Mr A. Sands, Barrister-at-Law, instructed by the Departmental Solicitor's Office.

 

 

REASONS

 

1.1 This Pre-Hearing Review was arranged to determine the question of whether the claimant's identity should be protected by an Order of permanent anonymity by the tribunal. The application was objected to by the respondent's representative.

 

1.2 It has to be recognised, as it was properly by the claimant at this hearing, that in considering the above issue, each case must be determined on its own facts and after application of the guidance in the appropriate case law; and that there is no assumption that an Order for Anonymity will be readily granted by a tribunal (see later). I accept that there have been cases heard in this tribunal, involving prison officers, where Anonymity Orders have been made but only pursuant to an application and after consideration of the relevant circumstances. In A Police Officer's Application (Leave Stage) (2012) NIQB 3 McCloskey J stated:-

 

"... If a police officer is a defendant in criminal proceedings or a litigant in civil proceedings are a party to fair employment or unfair dismissal or race discrimination tribunal proceedings, there will be a strong presumption against anonymity, evidenced by a long established practice to this effect firmly rooted in the principal of open justice ..."

 

( See further elsewhere in this decision references to this judgment and the guidance set out therein). However, I am satisfied that the reference in this judgment to a police officer would apply equally to a prison officer in this jurisdiction.

 

1.3 The claimant gave oral evidence at this Pre-Hearing Review. The respondent did not call any evidence. Both the claimant and the respondent's representative made oral submissions at the conclusion of the hearing.

 

1.4 The claimant confirmed that, at this hearing, she was not making any application, at this Pre-Hearing Review, in relation to the substantive hearing of this matter for a restricted reporting Order.

 

1.5 Having regard to my decision in this matter and to ensure anonymity, pursuant to my Order, I have only set out limited detail of the matters considered by me, save insofar as relevant and proportionate for the purposes of giving my reasons for this decision. (See Ameyaw v PriceWaterHouse Coopers Services Ltd [2019] UKEAT/0244/18).

 

2.1 The claimant, who at the material time, for the purposes of her said claim, was a serving prison officer, presented a claim to the tribunal on 11 October 2017, pursuant to the Disability Discrimination Act 1995, as amended. The respondent presented a response denying liability for the said claim on 8 December 2017. The claimant is no longer a serving prison officer. During the course of the hearing, the claimant agreed that, but for the matters set out later in this decision, the factual matrix/subject matter of her said claim, would not have given her grounds to make this application for an Order of Anonymity.

 

2.2 In a letter dated 14 February 2019, the claimant made her application for Order for Anonymity, which was primarily based on Article 2 (Right to Life) and Article 8 (Right to Respect for Private and Family Life) of the European Convention on Human Rights, arising from a newspaper article, published in late 2017. At this hearing, the claimant produced, without objection, further newspaper/website articles produced at or about the same time relating to the same matter. It was not disputed the newspaper/website articles referred to the claimant. However, she was not identified by name but the said articles/website identified that she was a serving prison officer, her age and area of residence. Significantly, in my judgment, for the purposes of this application, the said newspaper/website articles made various other references, both in word and in picture, to certain other activities relevant to the particular circumstances of Northern Ireland, which have given rise to serious concerns by the claimant, if she is identified in these tribunal proceedings, about her safety and that of her family. In particular, she referred to the "jigsaw identification" effect of the publication of these matters, as referred to above in the context of her bringing these proceedings; with the consequence that this could result in putting herself and her family in danger and potentially also requiring her to vacate her home. The claimant, when a serving prison officer, and subsequently, has always followed the advice of the respondent to keep her role as a prison officer confidential and in particular in the area where she resides.

 

The "jigsaw identification" effect, has been referred to in various legal authorities, including in Northern Ireland; - for example, Stephens LJ in X v Ministry of Defence and Another [2017] NICA 66 stated at paragraph 4 of his judgment:-

 

"The learned Judge granted anonymity Order and reporting restriction Order until to further Order of the Court and we consider that she was correct to do so given, for instance, the decision of this Court in AB v Sunday Newspapers t/a Sunday World [2014] NICA 58 .... these precautions were taken presumably to prevent the risk of jigsaw identification of the Plaintiff and to allow the Plaintiff an opportunity to suggest what if any further anonymisation was required prior to publication."

[Tribunal's emphasis]

 

Jigsaw identification has been commonly defined as - "the ability to identify someone by using two or more different pieces of information from two or more sources especially were the person's ability is meant to be a secret for legal reasons."

 

The claimant, in making her application, also relied on the statement by the Director General of the Prison Service, made in or about October 2018, when he stated - "the threat to prison officers from dissident killers remains severe". Mr Sands accepted that this remains the position. In the absence of other evidence by the parties, in particular the respondent, I was not in the position to determine whether that level, as described by the Director General of the Prison Service, only related to serving prison officers. In the circumstances, I have decided it also applied to the claimant, although she is no longer a serving prison officer.

 

3.1 In KL and MN v The Sunday Newspapers Limited [2015] NIQB 88, Stephens J, as he then was, stated at paragraph 19 of his judgment:-

 

"An issue has arisen as to whether there is a burden of proof on the party applying for anonymity and reporting restriction Orders. Open justice is a fundamental principal and the general rule is that hearings are carried out in, and judgments and Orders are, public. Such Orders are an exception to that Rule. In the case of A Police Officer's Application (Leave Stage) [2012] NIQB 3 McCloskey J, when considering applications for anonymity and reporting restriction Orders, stated that where:

 

An issue of this kind falls to be determined there is no true lis inter‑partes and the Court should approach the matter in the round, forming an evaluative judgment that is as fully informed as possible in the circumstances."

 

Accordingly, McCloskey J concluded that the Court would be in error to determine such issues on the basis of burden and standard of proof. I agreed that there is no true lis inter-partes given the public interest in play but the guidance states that the burden of establishing any derogation from the general principle of open justice lies on the person seeking it and that it must be established by clear and cogent evidence. .... I consider that applications which to seek derogations from open justice, must be supported with clear and cogent evidence and that the burden is on the party seeking the Orders ..."

 

I am satisfied that the claimant, in the present proceedings, insofar as she was able to do so, has brought such "clear and cogent evidence", as referred to previously in this decision, which has not been strongly challenged, if at all, by the respondent's representative.

 

In paragraph 21 of his judgment Stephens J also refers to the better practice, if anonymity Orders are to be made, to use a cypher given "the risks of jigsaw identification".

 

3.2 In the Rules of Procedure contained in the Schedule 1 of the Industrial Tribunals (Constitution of Rules of Procedure) Regulations (Northern Ireland) 2005, it is provided, at Rule 49

 

"49 In any proceedings involving allegations of the commission of a sexual offence the tribunal, the Chairman or the Secretary shall omit from the register, or delete from the register or any decision document or record of the proceedings, which is available to the public any identifying matter which is likely to lead members of the public to identify any person affected or making such an allegation.

 

[Of course, the present proceedings, there was no allegation of the commission of a sexual offence.]"

 

Under Rule 50 of the said Rules of Procedure, it is provided:

 

"50

 

(1) A restricted reporting Order may be made in any proceedings -

 

(a) involving allegations of sexual misconduct

 

(b) involving a complaint under Section 17A or 25(8) of the Disability Discrimination Act in which evidence of a personal nature is likely to be heard by the tribunal or Chairman

 

(c) where the disclosure of identifying matter will be likely to cause an individual ("I"), (whether a party to the proceedings or not) to be subject to harassment

 

(d) where such disclosure be likely to cause I, or any property of I, to be placed at risk of injury or damage; or

 

(e) where, in the opinion of the tribunal or Chairman, the interests of justice otherwise require such an Order to be made.

 

[Again, although the claimant is making a claim pursuant to the Disability Discrimination Act, her application was not made, pursuant to Rule 50(1)(b)].

 

An Order, under Rule 49 of the Rules of Procedure, is sometimes called a "Permanent Anonymity Order" or a "Register Deletion Order". (See F v G [2012] ICR 246).

 

3.3 The scope of the protection from identification that is afforded by the Rules of Procedure is therefore limited, save in a case covered by Rule 49 of the Rules of Procedure, which do not apply to the facts of the present proceedings. However, these limitations resulted in decisions of the Employment Appeal Tribunal in Great Britain (where the Rules of Procedure, at the relevant time were in similar terms to the Rules of Procedure in Northern Ireland - see later) making Orders, in appropriate cases, giving extended protection; that is protection in excess of that provided for by the Rules, not only in cases involving allegations of sexual misconduct and/or involving a complaint under Section 17A of the Disability Discrimination Act 1995 but also in cases, for example sex discrimination cases, when no allegations of sexual misconduct had been made, but where the tribunal was satisfied the claimant would be inhibited from making a complaint in the absence of such an Order (see X v Stevens [2003] IRLR 411 but also, in this jurisdiction JR5 v Department of Agriculture and Rural Development [2007] NICA 19. In JR5, for example, the Court of Appeal in Northern Ireland made such an Order where it is was established there was a risk to the claimant's physical safety. However, it should be noted that in JR5, the Court expressly did not address the issues of Articles 2 and/or 8 of the European Convention).

 

3.4 The protection available to those seeking anonymity Orders in situations not covered by the Rules of Procedure, was further extended by the Employment Appeal Tribunal in A v B [2010] IRLR 844. The Employment Appeal Tribunal had been asked to provide anonymity to a claimant in an unfair dismissal case where unsubstantiated allegations had been made against him that he had been involved in paedophile activity abroad and he represented a risk to children. The Employment Tribunal had previously made Orders under Rules 49 and 50 but the Employment Appeal Tribunal felt constrained by the Employment Tribunal Act 1996, Section 31 and the Rules of the EAT, from making similar Orders in the Employment Appeal Tribunal. It considered, as the case did not involve rights deriving from EU legislation, it could not adopt the approach of the Employment Appeal Tribunal in X v Stevens [2003] IRLR 411 and Chief Constable of West Yorkshire Police v A [2000] IRLR 465 by making an Order on the basis of the principal of effectiveness. The Employment Appeal Tribunal did, however, anonymise the names of the parties during the hearing of the appeal and made a permanent anonymity Order, by way of analogy to Rule 23(2) of the EAT Rules. Underhill J did so on the basis of Section 6 of the Human Rights Act and, through it, Article 8 of the Human Rights Convention (the Right to Respect for Private Family Life). Underhill J, as he then was, held that, as the loss of the claimant's anonymity involved a breach of the claimant's Convention Rights, it was the duty of the Employment Appeal Tribunal, under Section 6 of the Human Rights Act, to interpret its powers so far as possible to protect that anonymity. On the facts of the case, it was held publication of the claimant's identity would have had a "devastating effect" on the claimant's Article 8 rights (his honour and reputation). However, Underhill J emphasised that those rights needed to be balanced against the competing rights of the press to publish his identity under Article 10 (The Right to Freedom of Expression). After carrying out that balancing exercise, the Employment Appeal Tribunal concluded there was no public interest that would outweigh the likely damage he would suffer if the allegations of paedophilia were put into the public domain. In the later case of F v G [2012] ICR 246, to which further reference is made below, Underhill J stated, at paragraph 21 of his judgment, that the reasoning in A v B would also apply to cases where the Article 8 Rights of Persons other than the claimant or indeed the parties, were potentially infringed. In F v G, the Employment Judge had in fact made the Order under Rule 49; but this was held to be wrong by the Employment Appeal Tribunal, as the case did not involve allegations of a commission of a sexual offence. However, Underhill J held that the Order was substantively justified under the wider powers recognised in A-B, in light of Article 8 of the Human Rights Convention. During the course of his judgment in F v G, Underhill J acknowledged that tribunals may be able to make extended restricted reporting Orders, so that publication is restrained "beyond the life of the proceeding"; and such Orders would only seem to be possible where there are grounds for proceeding on the basis of the wider powers referred to; if not, the tribunal would be constrained by the strict wording of Rule 50, and tribunal would have no power to extend the protection beyond the date when liability and remedy had been determined. In recognising the complications and difficulties that had arisen, Underhill J, in F v G, gave the following guidance to tribunals, although he recognised doing so that this was still a developing area. It is of some interest to note that the Court of Appeal in Northern Ireland in the case of Anakaa v Firstsource Solutions Limited [2014] NICA 57 approved the guidance in F v G.

 

In F v G, Underhill J, at paragraph 24 of his judgment stated as follows:-

 

"(a) As a preliminary, consideration needs to be given to whether Rule 49 applies. If it does, anonymisation is mandatory.

 

(b) Subject to that, the best starting point is to consider whether restrictions on recording and/or anonymisation of the record are required in order to the protect the rights of a party or other affected person under Article 8, paying full regard to the importance of open justice (see para 23 above); and if so, to consider the extent of the necessary measures. It will be necessary to consider not only what restrictions are proportionate but for how long they need remain in place: permanent protection may or may not appropriate.

 

(c) If so protection is indeed required:

 

(i) if the necessary measures can be taken in the exercise of the powers under Rule 49 or 50, they should (indeed as regards to Rule 49, this stage will already have been passed - see (a) above).

 

(ii) If, however, one or both of those Rules is of no application - say because there is no allegation of the commission of a sexual offence or of sexual misconduct nor any (in short) disability issue - the necessary measures, whether by way of a RRO or by way of anonymisation, it should be taken in the exercise of the general powers of the tribunal under (now) Rule 10, in accordance with the reasoning in X and A v B (in the case of RRO the fact that the Order is being made under these wide powers may not make much difference to the actual format of the Order, since, as pointed out above, the standard format of an Order under Rule 50 can still usefully be taken as a template).

 

(iii) There may be cases which fall within the scope of Rule 50 but where the relief available under that Rule is too limited - eg if restriction of reporting is required beyond the end of the proceedings. In such a case the tribunal should, in case any tricky issues arise subsequently, make clear what it is doing under Rule 50 and what extra it is doing under the wider powers recognised in X and A v B .

 

(d) If there is no entitlement to protection under Convention Rights, then of course the issue falls to be dealt with purely under Rules 49 or 50, as the case may be.

 

(e) Except in cases where Rule 49 applies in accordance with its terms, the question whether the record of a tribunal needs to be anonymised need not necessarily be decided once and for all at the start of the proceedings. There is no reason why, in an appropriate case, a Judge might not direct interim anonymisation, with a final decision being taken only at the point when the judgment is delivered and when the tribunal will be well placed to assess all relevant factors."

 

3.5 In relation to the issue of an Order for anonymisation, in the particular context of Northern Ireland and members of the security forces/police officers/prison officers, I am satisfied that relevant guidance is to be found in the decision of McCloskey J in the case of in the matter of an application by a police officer to apply for judicial review [2012] NIQB 3, when he stated, in particular, in the course of his judgment:-

 

"... (4) in my opinion the anonymisation of any litigant in any jurisdiction or forum engages the principal of open justice. The leading authorities on this topic, Scott v Scott [1913] AC 417 and Attorney General v The Leveller Magazine [1979] AC 440 are well known. These authorities clearly establish a strong general rule that Court proceedings should be conducted in public.

 

... (14) while it may be foreseeable that Convention Rights will progressively dominate an application for anonymity of the present kind, the assertion of a Convention Right is not a pre-requisite to the discretionary conferral by the Court of this protected measures. In cases where a litigant seeks the protection of anonymity other under the guise of one of the Convention Rights, it is clear from the opinion of Lord Diplock in The Leveller that where the High Court permits any encroachment upon the principal of open justice it is drawing from the repository of powers belonging to its inherent jurisdiction to control the conduct of proceedings.

 

... (15) in my opinion, the advent of Convention Rights in domestic law during the past decade, through the vehicle of the Human Rights Act 1998, has served to place a sharper focus on issues relating to hearings in camera, hearings in chambers, protection of the identifies of litigants witnesses and the promulgation of judgments. I consider that if the Court adopts as its starting point the principal of open justice and, having done so, then explores rigorously - without resort to burden or standard of proof - the question of whether sufficient justification for any encroachment on this principal has been demonstrated and, if so, in what manner and to what extent, the Court is unlikely to fall into error. Adherence to this approach has the additional merit of minimising the risk of misuse of the Court process.

 

3.6 Following, the judgment of Underhill J in F v G despite the limitations of Rule 50, which at that time were in similar terms both under the Rules of Procedure in Northern Ireland and in Great Britain, extended protection was able to be given, to parties, witnesses and others, where it was considered that their Convention Rights were insufficiently safeguarded. In Great Britain, following the introduction of the 2013 Employment Tribunal Rules, Rule 50 was amended to give a tribunal extended powers in relation to privacy and restrictions on disclosure -

 

"50(1) A tribunal may at any stage of the proceedings, on its own initiative or on application, make an Order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention Rights of any person or in the circumstances identified in Section 10A of the Employment Tribunals Act.

 

(2) In considering whether to make an Order under this Rule, the tribunal should give full weight to the principal of open justice and to the Convention right to freedom of expression.

 

(3) Such Orders may include -

 

(a) an Order that a hearing that would otherwise be in public be conducted, in whole or in part, in private

 

(b) an Order that the identity of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the register or otherwise forming part of the public record.

 

(c) an Order for measures preventing witnesses at a public hearing being identifiable by members of the public

 

(d) a restricted reporting Order within the terms of Section 11 or 12 of the Employment Tribunals Act."

 

As confirmed in Harvey on Industrial Relations and Employment Law Volume 4 Section PI paragraph 950 and following it is recognised that the protection afforded by Rule 50 of the 2013 Employment Tribunal Rules, although, it is very much wider than that available under the previous Rule, it is nevertheless reflective of the extended protection which was given in decisions, as referred to above, including, in particular the guidance of Underhill J in the case of F v G.

 

Indeed, it was not disputed by the representative for the respondent or the claimant that, whether applying the Rules of Procedure in Northern Ireland or the Rules that now apply in Great Britain that, where issues arise in relation to the protection of Convention Rights of any person, the tribunal must give full weight to the principal of open justice and to freedom of expression and the approach to such issues by a tribunal requires an evaluation of competing rights, balancing one against the other before reaching a decision, having determined that such an Order may be necessary in the circumstances of the particular case. ( Ameyaw v PriceWaterhouseCoopers Service Limited (UKEAT/0244/18) and Fallows v News Group Newspaper Limited [2016] ICR 801 and the recent decision of the Employment Appeal Tribunal in the case of AB v XY and Times Newspapers (UKEAT/0113/18, which reviewed and followed much of the relevant case law, referred to previously).

 

In A v The Secretary of State for Justice [2018] UKEAT/063, Tucker J, when considering Rule 50 under the 2013 Rules, emphasised the tribunal must first consider the basis on which an Order would be made and, secondly, consider the importance of the principle of open justice, give full weight to it and the right to freedom of expression and then stated:-

 

"13 As regards the first of these two matters, the restriction in public disclosure can only be imposed insofar as the tribunal considers it necessary for at least are of three specific matters:

 

(i) the interests of justice

 

(ii) in order to protect the Convention Rights of any persons

 

....."

 

Although Rule 50 of the 2013 Rules does not apply in Northern Ireland, the guidance provided in relation thereto is relevant, for the reasons set out above, in the making of an anonymity Order, pursuant to the Rules of Procedure in Northern Ireland.

 

In a recent decision of the Supreme Court in Khuja v Times Newspaper Limited and Others [2017] UKSC 49 Lord Sumption, in his review of the law in relation to issues such anonymity stated, in the course of his opinion:-

 

"15 More recently, two factors have combined to broaden the scope of the exceptions to the open justice Rule and the frequency of their application. One is the growing volume of civil and criminal litigation raising issues of national security. This calls for no comment on the present appeal. The other is the recognition of a number of rights derived from the European Convention on Human Rights, which the Courts as public authorities are bound by Section 6 of the Human Rights Acts 1998 to respect. The Convention Right most often engaged in such cases is the right under Article 8 to respect for private and family life. Article 8 Rights are heavily qualified by the Convention itself and even when they are made good they must be balanced in a publication case against the right to freedom of expression protected by Article 10. But other Convention Rights may occasionally be engaged which are practically unqualified, such as the right to life under Article 2 and to protection against serious ill treatment under Article 3: A v British Broadcasting Corporation [2015] AC 588. These countervailing interests have become significant, not just because they have come to be recognised as legal rights but because the resonance of what used to be reported only in the press and the broadcasting media has been greatly magnified in the age of the internet and social media ..."

 

3.7 In the context of proceedings, in the particular circumstances of Northern Ireland, issues relating to Article 2 (Right to Life) of the European Convention have required to be the subject of considerable litigation in relation to applications for anonymity of serving and retired police officers, especially where such issues have arisen out of coronial proceedings. The Court of Appeal, in the case of In the Matter of an Application by Officers C, D, H and R [2012] NICA 47 set out circumstances in which, prospectively, the position of the operational duty to protect life under Article 2 arises; and, when that duty arises, the appropriate steps which are required to be taken to safeguard an individual's life. It also has to be recognised that the factual situation referred to in that case is very different to the factual circumstances in the present proceedings. However, I think it is relevant to note what was stated by the Lord Chief Justice in the course of his judgment in that case when he stated:-

 

"26 In a passage in the opinion of Lord Carswell in Re Officer L he said that the criterion of real and immediate risk described in Osman had a high threshold and was not easily satisfied. To deduce from this passage that there is some high threshold of risk which has to be satisfied would, as Lord Hope said in Van Colle, place a gloss on the test described in Osman and in any event the observation does not help with an understanding of the real and immediate risk test. As the cases reviewed by Girvan LJ demonstrate, if there is a risk to life from a well organised and resourced terrorist group which, objectively verified, is neither fanciful nor negligible that is a real risk for the purpose of the Osman test. In Officer L the inquiry asked whether there was a material increase in risk as a result of the police officers giving evidence. Although there is a difference in the way the question is posed I considered that these tests are in substance the same.

 

27 What Osman and Van Colle establish, however, is that there are very limited circumstances in which it will be possible to conclude that the authorities knew or ought to have known of a risk to life. In that sense the test has a high threshold and is not easily satisfied. In Northern Ireland there is, however, a particular context. Police officers have been subject to threats, targeting and attacks by well organised and resourced terrorist organisations using lethal force for many years. It is hardly surprising, therefore, that where the threat emanates from such a group the Osman test should be more frequently satisfied."

 

4.1 Mindful of the guidance set out in the case law, referred to in the previous paragraphs of this decision, in relation to the full regard to be attached to the importance of open justice, when carrying out the said balancing exercise I am satisfied that in light of the evidence of the claimant, which was not seriously challenged by the respondent, as referred to previously, that the claimant's Convention Rights, whether under Article 2 or Article 8, are engaged and in view of the real risk, in my judgment of jigsaw identification by reason of the matters set out in the newspaper/website articles, I have concluded, after carrying out the necessary balancing exercise, that the claimant has established the necessary grounds to justify an encroachment of the principal of open justice; and, on the facts of this case, an anonymity Order is required to be made, for the purposes of the present proceedings, which, in my judgment, also requires to be in the nature of a permanent Order in the circumstances.

 

4.2 I therefore make an Order that the name of the claimant be anonymised, as set out above by the cypher "BB" that her name be omitted from the register, pursuant to a permanent anonymity Order.

 

 

 

Employment Judge:

 

Date and place of hearing: 4 April 2019, Belfast.

 

Date decision recorded in register and issued to parties: