United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P ROSE (of Counsel) Instructed by: Mr J P Taylor Messrs Ironsides Solicitors Macaulay House 10 Friar Lane Leicester LE1 5QD
For the Respondent	THE RESPONDENT IN PERSON


 


JUDGE PETER CLARK: This appeal raises an important question as to the Employment Tribunal's powers in making Restricted Reporting Orders ["RRO"] to be found in Rule 14 of the Employment Tribunals Rules of Procedure ["the Rules"] contained in Schedule 1 to the Employment Tribunal (Constitution etc.) Regulations 1993, and made pursuant to s. 11 of the Employment Tribunals Act 1996 ["ETA"].

The Employment Appeal Tribunal Restricted Reporting Order

We were asked by the appellant employer to make a RRO to include the applicant and respondent to the Employment Tribunal proceedings and three other individuals named in the order of Employment Tribunal contained in a decision dated 2nd December 1998 under r. 23 of the EAT Rules. We did so, subject to discussion of the continuance of the order after our decision was announced, and without prejudice to the arguments raised in the appeal.

The Tribunal Proceedings

By an Originating Application presented to the Employment Tribunal on 7th January 1998 the female applicant brought a complaint of unlawful sex discrimination against her then employers, the respondent University.

The nature of her case, developed in detail in further and better particulars served pursuant to an order of the tribunal, is that over a period of years she was persistently sexually harassed by a male employee of the respondent, whom we shall refer to as 'X', who held a position superior to hers, such behaviour allegedly including serious sexual assaults; that she reported this behaviour to the respondent but no action was taken to prevent the alleged harassment continuing.

In response, the respondent avers that a consensual sexual relationship was conducted between the applicant and X; that at no time was the applicant sexually harassed or assaulted by X, and that she made no complaint to the respondent until it appeared that her continued employment with the respondent was in jeopardy as a result of concerns about her performance. The claim is resisted.

X has not been joined as a separate respondent to the complaint.

At an early stage in the proceedings, by letter dated 21st January 1998, solicitors for the respondent made application to the Employment Tribunal for an RRO, encompassing the applicant, the respondent and X.

On 23rd January 1998 a Chairman made an order under r.13(6) of the Rules.

The application for an RRO was first considered by a full tribunal sitting on 1st June 1998. Having heard representations from a solicitor for the applicant and Counsel for the respondent, that tribunal made an RRO naming the applicant, her children, X, his wife and children, the respondent and a number of named employees of the respondent, totalling in all some 40 individuals. In making that order ["the first order"] the tribunal considered the cases of M v Vincent [1998] ICR 73, a decision of this Appeal Tribunal presided over by Morison J and a transcript of a judgment of Keene J sitting in the Divisional Court, in R v London (North) Industrial Tribunal ex parte Associated Newspapers (30th April 1999) ["London (North)"], now reported [1998] IRLR 569.

At a subsequent hearing before a different Chairman, Mr J A Threlfall, sitting alone on 24th November 1998, that Chairman considered an application made by the applicant under r.14(4) to revoke that part of the first order which named the respondent and its employees other than the applicant and X. We have seen a note prepared by the applicant dated 30th September 1998 in support of that application. It relies on the reasoning of Keene J in the London (North) case.

The application, which was opposed by the respondent, succeeded before the Chairman. In a decision with extended reasons dated 2nd December 1998 the Chairman expressed the view that he was bound by the Divisional Court decision in London (North); that no distinction could be drawn between the University and Camden Council, the employer in London (North), and that the University was not a "person affected by the allegation of sexual misconduct" within the meaning of s.11(6) of ETA. He ruled that the only persons affected by the allegation and entitled to have their identities protected by an RRO were the applicant and X and two witnesses alleged to have seen the acts, Adam Edwards and John Garland. Accordingly he revoked the first order and made a second order naming only those four individuals.

It is against that second order that the respondent brings this appeal.

The statutory framework

S.11 of ETA provides:

(1) Employment tribunal procedure regulations may include provision-

(a) for cases involving allegations of the commission of sexual offences, for securing that the registration or other making available of documents or decisions should be so effected as to prevent the identification of any person affected by or making the allegation, and provision-

(b) for cases involving allegations of sexual misconduct, enabling an employment tribunal, on an application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal.

(2) If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order -

(a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any published of the newspaper or periodical,

(b) in the case of publication in any form, the person publishing the matter, and

(c) in the case of matter included in a relevant programme-

(i) any body corporate engaged in providing the service in which the programme is included, and

(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper.

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(3) Where a person is charged with an offence under subsection (2) it is a defence to prove that at that time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or included, the matter in question.

(4) Where an offence under subsection (2) committed by a body corporate is proved to have been committed with the consent of connivance of, or to be attributable to any neglect on the part of -

(a) a director, manager, secretary or other similar officer of the body corporate, or

(b) a person purporting to act in any such capacity,

he as well as the body corporate is guilty the offence and liable to proceeded against and punished accordingly.

(5) In relation to a body corporate whose affairs are managed by its members "director", in subsection (4), means a member of the body corporate.

Subsection (6) is the interpretation section. We need only refer to the following:

"identifying matter", in relation to a person, means any matter likely to lead members of the public to identify him as a person affected by, or the person making, the allegation,

"relevant programme" has the same meaning as in the Sexual Offences (Amendment) Act 1992,

"restricted reporting order" means an order -

(a) made in exercise of a power conferred by regulations made by virtue of this section, and

(b) prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain.

No issue arises on the definition of "sexual misconduct" and "sexual offence", which is also there set out.

These provisions were first enacted in s.40 of the Trade Union Reform and Employment Rights Act 1993 ["TURERA"] and inserted into Schedule 9 to the Employment Protection (Consolidation) Act 1978, paragraphs 5A and (8) to (11). They came into force on 30th August 1993. The same provisions were subsequently re-enacted in s.11 of the Industrial Tribunals Act, now ETA, 1996.

S.62 of the Disability Discrimination Act 1995, which came into effect on 2nd December 1996, provided for restrictions on publicity in cases involving complaints brought under s.8 of that Act. That provision was re-enacted in s.12 ETA, then the Industrial Tribunals Act, which came into force on 22nd August 1996.

S.12 is in similar terms to s.11 with this notable difference. Whereas under s.11(1)(b), in cases of alleged sexual misconduct, the Employment Tribunal may make an RRO on the application of any party to the proceedings before it or of its own motion, the Employment Tribunal is empowered to make an RRO in a disability case on the application of the complainant only or of its own motion s.12(2)(a). The respondent therefore has no locus to apply for an RRO in a disability case under the Act. The power to make an RRO in a disability case arises where evidence of a personal nature is likely to be heard by the Employment Tribunal hearing the complaint - s.12(1).

Turning to the procedural rules made under, respectively, what are now ss.11(1) and 12(1) of ETA, r.14 of the Rules provides:

14.-(1) In any case which involves allegations of sexual misconduct the tribunal may at any time before promulgation of its decision in respect of an originating application, either on the application of a party made by notice to the Secretary or of its own motion, make a restricted reporting order.

(1A) In proceedings on a complaint under section 8 of the Disability Discrimination Act 1995 in which evidence of a personal nature is likely to be heard by the tribunal, it may at any time before promulgation of its decision in respect of an originating application, either on the application of the complainant made by notice to the Secretary or of its own motion, make a restrictive reporting order.

...

(4) A tribunal may revoke a restricted reporting order at any time if it thinks fit.

We pause to observe that the statutory distinction between those who can apply for an RRO in, respectively, sexual misconduct and disability cases is reflected in sub-rules (1) and (1A). That distinction, incidentally, is overlooked by the Editors of Harvey on Industrial Relations and Employment Law in the commentary at paragraph T787.

M v Vincent

This was a decision of the EAT presided over by the President. It is, we think, important to observe at the outset that (1) this was, so far as we aware, the first time that the Appeal Tribunal was asked to construe the meaning and effect of the expression "any matter likely to lead members of the public to identify him as a person affected by ... the allegation" in s.11(6) of the Act; (2) neither the applicant, nor the press, appeared or were represented in that case; consequently argument was heard only from Counsel for the appellant employer, a body corporate; (3) the EAT was not referred to the Parliamentary debate leading to the promulgation of s.40 of TURERA under the principles in Pepper v Hart [1993] IRLR 33 nor the wider law on restrictions on publicity; (4) the main purpose of the appeal in M v Vincent was, we think, different to that behind the present appeal, as we shall explain.

The factual position in M v Vincent was that the applicant, Miss Vincent, who it would seem did not seek or require an RRO in respect of her own identity, appears to have made an allegation of sexual misconduct against the son of the founder of the small respondent company by which she was employed. The founder's first and second names formed part of the business name of the limited company. The son was one of only two men working in that company. He was one of two directors, the other being his mother.

On application by the respondent a Chairman of Employment Tribunals considered the provisions of s.11 and r.14 and made an RRO in respect of the son against whom the allegation was made, but declined to include the respondent company in the order on the grounds that the purpose of the rule was to protect individuals in respect of allegations in respect of sexual misconduct but did not extend to protecting a body corporate.

Against that limited order the respondent company appealed. We see from ground (5) of the grounds of appeal that it was contended that by making an order in respect of the individual and not the company bearing his name, there was a risk that the individual could be identified via publication of the name of the company. As a matter of construction, it was argued that the word "person" in s.11(6) included a body corporate.

The EAT upheld the appeal. It concluded that the Chairman was unquestionably wrong to conclude that he did not have power to make an RRO in respect of a body corporate.

As a matter of statutory construction the EAT went first to the Interpretation Act 1978, where it is provided that, unless the contrary intention appears, the presumption is that the words "person" includes a body of person corporate or unincorporate. Applying that approach, the President said this at 75F-76C:

"But it goes further than that. If one looks at section 11(2)(b) of the Industrial Tribunals Act 1996 it provides:

"(2) If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order - ...

(b) in the case of a publication in any other form," - that is other than publication in a newspaper or periodical - "the person publishing the matter ... shall be guilty of an offence ..."

Subsection (4) says:

"Where an offence under subsection (2) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of -

(a) a director ... he as well as the body corporate is guilty of the offence ..."

It is therefore manifestly clear that when Parliament used the word "person" in section 11(2)(b) Parliament had in mind the application of the Interpretation Act 1978 and that that would include a body corporate. Since the word "person" appears in section 1(1), it is to be assumed that Parliament was using the word in the same way in the same section.

Accordingly, not only is this not a case where the contrary intention appears, it is a case where it is obvious from the context of the section itself that Parliament intended that "person" should include a body corporate. That being so, there is no reason to construe the rules in any restricted way. There is nothing in the rules which requires a more restricted construction and we are therefore fully persuaded by Mr Parkin [Counsel for the employers], who has admirably succinctly presented these arguments to us, that the industrial tribunal chairman erred in law. It follows from that that he had not exercised his own discretion in relation to the matter and it therefore falls for us to apply the discretion which he denied to himself.

It seems to us on the facts of this case, that this is a case where it would be appropriate that a restricted reporting order should be made in relation to the company as well as in relation to the person in respect of whom such an order has already been made. The reason for that is simply that otherwise the order which the tribunal has made in relation to the individual could readily be subverted."

The appeal was allowed and the RRO extended to include the corporate respondent.

The London (North) case

Ms Kelly, the Deputy Chief Executive and Borough Solicitor of Camden Council presented a complaint to the London (North) Employment Tribunal against the Council and its Chief Executive, Mr Bundred. She complained, among other things, of sexual harassment by a male employee, a matter which she alleged was not properly dealt with by the Chief Executive. She held the Council, as employer, liable for the acts of those employees, which she contended amounted to unlawful sex discrimination.

The Regional Chairman made an RRO under r.14, naming, among others, the applicant, the Council and the Chief Executive. She included the Council on the basis that to name it would be to identify the applicant and the Chief Executive and other persons covered by the RRO.

Associated Newspapers Ltd, as proprietors of various newspapers, applied to the Divisional Court for an order quashing the RRO in respect of the Council and the Chief Executive.

It is right to point out that at the hearing of that application, which came before Keene J, he had the advantage of far fuller argument by leading Counsel on behalf of the Newspapers and Treasury Counsel on behalf of the Employment Tribunal than did the President and his colleagues in M v Vincent.

As to whether the words "person affected by ... the allegation" in s.11(6) covered Camden, Keene J said this at paragraphs 42-43 of the report:

"As far as the London Borough of Camden, I have some doubts as to whether a corporate body was ever intended by Parliament to fall within the phrase 'person affected by' in s.11(6). The decision of Morison J in M v Vincent, ante, deserves of course great respect, but I have to confess that I find the reasoning in that passage in the case less than persuasive. It may well be that in some cases to identify an employer company would be to identify, in effect, an individual deserving of protection from identification, as his Lordship said. But that problem can readily be guarded against if the RRO is made, as it should be, using the language of s.11(6), that is to say, prohibiting the publication of any matter likely to lead members of the public to identify the individual. If publishing the name of the company would be likely to lead to that, the press would be banned from such publication in any event and would commit a criminal offence under s.11(2) if it did publish the company's name. In this connection I would reiterate the guidance given by Brook J (as he then was) in R v Southampton Industrial Tribunal ex parte INS News Group Ltd [1995] IRLR 247, at 248, that it may be better to make an order in the form of a prohibition on the publication of any matter, whether by way of written or spoken word or by photograph, which is likely to lead members of the public to identify the named individual as a person affected by or making an allegation of sexual misconduct. That does not appear to have been the form of the order made in the present case.

It is unnecessary, however, to decide whether in principle a body corporate can or cannot be protected against identification by an RRO, because in the present case I am satisfied that the London Borough of Camden was, in any event, not 'a person affected by' the allegations of sexual misconduct in this case. Given the purpose of the statutory provisions and the narrow interpretation to be put upon them. the council did not fall within that expression. The mischief at which these powers were directed would not occur through the identification of the council in any press reporting which took place of the tribunal proceedings."

He then went on to find that in any event the Regional Chairman had erred in the exercise of her discretion in including the Council and Chief Executive in the RRO.

In the course of argument Keene J was referred by Counsel to the Parliamentary debate preceding the promulgation of s.40 TURERA. On the aspect of the case he expressed his conclusions at paragraphs 35-37 of the report which we have considered.

Submissions

In a carefully constructed and thoughtful written submission, developed in argument, in support of the second order made below, the applicant invites us to endorse the reservations expressed by Keene J in London (North) as to the President's view in M v Vincent that "person" in s.11(6) can include a corporate body, and to find that it cannot; alternatively, that even if it can be so construed, the RRO in this case ought not to extend to the respondent, not because to do so would identify either the applicant or X or the other two witnesses named in the second order; we are told that there are about 3,000 employees of the respondent, but because the respondent is entitled to anonymity in order to protect its reputation and standing in the field in which it operates until the case is concluded and the Employment Tribunal has promulgated its decision.

In support of the appeal Mr Rose takes a number of points, each of which merits close attention. In summary they are, in no particular order of importance:

(1) that as a matter of pure statutory construction the President's reasoning in M v Vincent is correct. "person" in s.11(6) ETA includes a body corporate.

(2) whilst it is not easy to reconcile that decision with the judgment of Keene J in London (North) he points out that at paragraph 42 in that judgment, whilst expressing reservations as to the reasoning in M v Vincent, the learned judge gives no reasons of his own to support those reservations.

(3) if "person" can include a body corporate, then plainly a corporate respondent to a complaint of sex discrimination which includes an allegation of sexual misconduct is a "person affected" by that allegation in the sense that the respondent is a person against whom a finding of unlawful sex discrimination may be made and who will have to pay any award of damages; further the respondent will suffer damage to its "trading character", in the sense that if sensational allegations of sexual misconduct, which may prove later to be unfounded are made during the course of tribunal proceedings and are published in the media., those reports will lower the standing of the respondent in the eyes of the community in which it operates and its users or potential users. Since damage to "trading character" is recognised in other jurisdictions, such as defamation, why not in the present context. Further, he submits, it cannot be right that Parliament intended there to be a disparity of treatment so far as publicity is concerned between the individual applicant and the corporate respondent, both being parties to the same proceedings.

(4) he recognises that a balance must be struck between the policy considerations of freedom of the press to report fully public judicial proceedings and the rights of person involved in such proceedings to anonymity when highly personal matters, here alleged sexual misconduct, are in issue and in evidence. However, he submits that there is nothing in the Parliamentary debates to indicate that the category of persons whose identities may be protected under an RRO should exclude corporate bodies.

(5) He asks us to allow this appeal and to add the respondent to the list of those named in the second order.

Conclusions

We accept Mr Rose's strictures as to the approach adopted by Keene J in paragraph 42 of the judgment in London (North) to the reasoning of the President in M v Vincent. It is not, we think, wholly satisfactory for a court of equal standing to place doubt on a clearly and unequivocally expressed view by an earlier court or tribunal on a point of pure statutory construction without in terms dissenting from or agreeing with that view, and further, in giving no reasoning of its own to explain its reservations.

We make that observation for practical reasons. RRO's are being made daily by Employment Tribunal Chairmen up and down the country; they are entitled to know, in the first place, whether or not they have power under r.14 and s.11 to name corporate respondents in such orders, or whether they must be limited to individuals. In these circumstances we shall embark upon our own interpretation of the words used by Parliament.

We begin with the proposition that the word "person" includes a body corporate or unincorporated unless the contrary intention is shown, in accordance with the Interpretation Act.

In construing s.11(6) of ETA in M v Vincent the President concluded that in using the words "person" in s.11 Parliament plainly had in mind the application of the Interpretation Act 1978 and that would include a body corporate in the word "person". In support of that conclusion he drew attention to the wording of s.11(2)(b) and (4), which he considered showed that Parliament used the word "person" intending that it should include a body corporate.

We go back to the scheme of s.11. Subsection (2) deals with three types of breach of an RRO amounting to a criminal offence triable summarily and punishable by a fine.

(a) deals with proprietors, editors and publishers of newspapers or periodicals (that is individuals),

(b) deals with persons publishing in any other form,

(c) deals with "relevant programmes" defined by reference to the Sexual Offences (Amendment) Act 1992, which in turn refers to the definition contained in Schedule 15 to the Broadcasting Act 1990 ("relevant programme" means a programme included in a programme service).

It draws a distinction between a body corporate engaged in providing the service, and a person having functions in relation to the programme corresponding to those of a newspaper editor (an individual), both of whom may be guilty of an offence.

Subsection (3) provides a defence to a person charged with an offence under subsection (2) where he was not aware that the publication or programme in question breach the RRO. That is important, bearing in mind that this in a penal provision. Since a body corporate may be guilty of an offence under subsection (2)(c)(i), that body corporate must be able to avail itself of the statutory defence under subsection (3) and thus be a "person" for the purposes of that subsection. We think it is that reference to "person" in subsection (3) which provides the answer to the question, can the word "person" include a body corporate for the purpose of s.11(6), rather more than subsection (4) to which the President referred in M v Vincent, and which when read with subsection (2)(c)(i) might otherwise have led to the conclusion that in s.11 generally, references to "person" mean individuals as opposed to corporate bodies which are elsewhere specifically referred to.

In these circumstances we respectfully agree with the President that the word "person" in s.11(6) is capable of including corporate or unincorporated bodies as a matter of pure construction.

However what the President was not required to go on to consider was whether in the context of s.11(6) the words "person affected by ... the allegation" was intended by Parliament to include protection for anyone other than an individual. The point that arises in this case.

The mischief at which the EAT was directing its attention in M v Vincent was this. An RRO limited to protecting the identity of the individual director against whom the allegation of sexual misconduct had been made (and who was plainly entitled to the protection of an RRO) would be ineffective if the identity of the small limited company respondent, which bore his name, was published. Whilst we see the practical force of that concern, we think that the correct response was provided by Keene J in paragraph 42 of his judgment. An order properly framed in the way there described would protect that individual's identity, for if, by publishing the name of the company a publication or programme thereby caused that individual's identity to be made known to the public, that would constitute a breach of the order.

What was not argued, apparently, in M v Vincent, was that the company required inclusion in the RRO to protect its trading reputation. The question is whether Parliament intended that an RRO should include a corporate respondent as a "person affected" in order to protect its trading reputation. That is the real question in the present appeal, and is the question which Keene J declined to answer conclusively in London (North), although he expressed the view that such was not Parliament's intention.

In order to answer that crucial question we turn first to the distinction between those who can apply for an RRO in cases alleging sexual misconduct and in disability cases. We regard it as highly significant that whereas any party to the proceedings may apply for an RRO in the former case, only the complainant may apply in a disability case. In either case the Employment Tribunal may make an order of its own motion.

Why should such a distinction exist? We think the answer is that in both cases the individual applicant requires the protection of anonymity whilst evidence is being heard during the course of the Employment Tribunal proceedings; similarly, named individual respondents and other witnesses or individuals mentioned in sexual misconduct cases; however, there is no justification for anonymity in order to preserve the trading reputation of a corporate respondent in either type of case.

Secondly, we remind ourselves of the general law as to reporting restrictions which preceded the passing of the RRO legislation, and which Parliament must be taken to have had in mind. S.11 of the Contempt of Court Act 1981 allows the Court to direct that a name or other matter in proceedings be withheld from the public. Such a direction represents a departure from the general principle that public judicial proceedings may be fully reported. It is significant that the power has been exercised in cases involving embarrassment arising out of a medical condition. See H v Ministry of Defence [1992] 2 QB 103 (CA); R v Criminal Injuries Compensation Board ex parte A [1992] COD 379. That represents part of the background to the introduction of the RRO to protect the identity of the complainant in a disability case. Further, the Sexual Offences (Amendment) Act 1992, specifically referred to in the s.11(6) ETA, makes provision for preserving the anonymity of the complainant in a criminal case involving an allegation that a relevant sexual offence has taken place.

Turning to the commercial reputation of a person in criminal proceedings, in R v Dover Justices ex parte Dover District Council and Wells [1992] Crim. LR 371, the Divisional Court held that financial damage or damage to reputation or goodwill which resulted from the institution of court proceedings concerning a person's business did not amount to the special circumstances envisaged an entitling the Court to restrict or prevent press reporting. That approach, it seems to us, runs contrary to the submission advanced on behalf of the appellant in the present appeal.

Defamation.

The difficulty with the analogy which Mr Rose seeks to draw between the law's recognition that a corporation's trading character may be damaged by libel and the instant case is that, for the purposes of defamation, the reporting of judicial proceedings attracts absolute privilege. A further distinction is drawn in law between the position of a commercial corporation and a Local Authority. See Derbyshire County Council v Times Newspapers Ltd [1993] 1 AER 1011.

In short, we do not consider that the reference to the law of defamation assists our determination of the point in this appeal one way or the other.

Parliamentary materials.

We were invited to consider the Parliamentary debates in both Houses leading to the promulgation of the relevant legislation under consideration in this appeal. We are content to do so, as did Keene J in London (North). Having been referred to the House of Lords debate in Hansard on this provision, Keene J said this at paragraph 36 of the his judgment in that case:

"In arriving at a conclusion as to what that purpose was, both sides agree that in this case it is proper to have regard to the ministerial statements as reported in Hansard. Those statements, referred to earlier, show that the purpose of these provisions was to enable complaints of sexual harassment at work to be brought and witnesses to give evidence about incidents of sexual harassment without being deterred by fear of intimate sexual details about them being publicised. I am not sure that it is possible to define persons 'affected by' such allegations simply in terms of categories, such as alleged victim, alleged perpetrator and witness of the incident, although it seems that these were the persons whom Parliament principally had in mind. The right approach is to deal with the individual case and to ask whether a particular person is 'affected by' the allegation given the purpose of the legislation. It would not be right for this court to seek to substitute some definition of its own for the words Parliament has chosen to use."

Mr Rose has referred us in particular to the House of Commons debate and a question asked by Ms Quin of the minister, Miss Widdecombe. The question is a long one, the relevant passage is this:

"If reporting the results of sexual harassment cases is restricted, it may become more difficult to persuade employers that the subject requires proper complaints procedures and preventive measures. When a complaint of sexual harassment has been upheld by a tribunal, press reports can be an important means of emphasising employers' responsibility to take action to prevent sexual harassment in the workplace. Although the names of the harasser and the victim are often not necessary, some reporting of the name of the employer and the workplace can be an effective method of alerting other employers to their responsibilities under the law."

Mr Rose submits that if it had been the intention of the government minister, Miss Widdecombe, that the RRO provisions should not cover the names of companies, then it would be expected that she would have said in answer to Ms Quin's concerns that they were misconceived, since the proposed legislation provided no protection for the identity of corporate persons. Instead, in her reply, the minister said that:

"When people are deterred, the perpetrator is not called to account and is left free to carry on with his conduct. I believe that the balance is ensured first by the discretionary nature of the power - I repeat that it is certainly not automatic - and, secondly, by the fact that the order will lapse on promulgation of the decision, at which point the facts of the case and of the determination will be made known."

We think that submission misses the mark. What the minister pointed out to Ms Quin is that under the proposed legislation, once the Employment Tribunal's decision had been promulgated, and the question was directed to events after a complaint had been upheld, all the identities protected under an RRO could then be made public. The question was directed to post, not pre-promulgation of the tribunal's decision. It therefore had no bearing on who was covered by the pre-promulgation restriction.

Generally, having considered the relevant debates in both Houses, we conclude that it was the clear intention of Parliament to extend the protection of anonymity afforded by an RRO to individuals only, that is the party making the complaint and the party, in the sense of the individual, against whom the allegation of sexual misconduct was made, together with any other relevant individuals to the matters in issue. It was not Parliament's intention, we are satisfied, to extend the restriction to protect the reputation of corporate respondents, even although that may lead to disparity between the parties to the proceedings as to the publicity that can be given to each of them.

Summary

We conclude that whilst the word "person" in s.11(6) ETA is capable of including a body corporate, on a proper construction of the words "person affected by ... the allegation" in that subsection, those words can only relate to an individual. The expression does not cover a body corporate or other respondent other than an individual respondent. We reach that conclusion for the reasons given, that is, by reference to the general law as to reporting restrictions and the balance which we think Parliament intended to strike between the freedom of the press to report fully and contemporaneously public judicial proceedings on the one hand and the need to protect those making and accused of allegations of sexual misconduct at work, and witnesses to such events, from being deterred from bringing such complaints or giving evidence relating thereto or from being wrongly accused of such conduct, by fear of intimate sexual details be otherwise published. That emerges from the Parliamentary debates, in the context of the previous law. Specifically, we are satisfied that it was not the intention of Parliament to provide the protection of anonymity to corporate respondents who may be vicariously liable for such acts of sexual misconduct in order to protect their commercial reputation. Further, as a matter of construction of ss.11 and 12 ETA we have concluded that that intention was effectively translated into the wording of the legislation and procedural rules made thereunder.

It follows, in our judgment, that the Chairman was correct in law in making the second order limited to the four named individuals. For the avoidance of doubt, the effect of that order is that there is a prohibition on the publication of any matter, whether by way of written or spoken word or by photograph, which is likely to lead members of the public to identify those four named individuals as persons affected by or making an allegation of sexual misconduct.

The appeal is dismissed.

JUDGE PETER CLARK: Mr Rose has applied on behalf of the respondent employer for leave to appeal to the Court of Appeal against our judgment in this case.

We accept that this is a point of general importance. However, we have reached precisely the same view as did Keene J in London (North). We are not satisfied that there is a real prospect that the Court of Appeal will reach a different view. For that reason, the application is dismissed.

Additionally, we bear in mind that the full merits hearing of this case has been listed for 18 days, commencing on 3rd March 1999. A tribunal has been arranged from out of the local region and, in these circumstances, we would be reluctant to put that hearing at risk in a case where we saw no real prospect of success before the Court of Appeal. Of course, that does not prevent Mr Rose from renewing his application elsewhere. If he does so within 48 hours the RRO which we ordered at the beginning of this hearing will continue until his application for leave is heard by the Court of Appeal. If he does not, the order will be discharged at the end of that 48 hour period.