United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant (the Appellant under PA/1415/08/JOJ)	MR PAUL GOULDING (One of Her Majesty's Counsel) MR DAVID CRAIG Instructed by: Messrs Mishcon de Reya Solicitors Summit House 12 Red Lion Square London WC1R 4QD
For the Appellants (under PA/1417/08/JOJ – A and Others)	MR PUSHPINDER SAINER (One of Her Majesty's Counsel) Mr C POTTER (of Counsel) Instructed by: Messrs Dechert LLP Solicitors 160 Queen Victoria Street London EC4V 4QQ
For the First to Fifth Respondents (the media)	MR GUY VASSALL-ADAMS (of Counsel) Instructed by: [Times Newspapers Limited Legal Services] 1 Pennington Street London E1 1LG
For the Sixth and Seventh Respondents (the Claimants)	MR JAMES LADDIE (of Counsel) and MR JUDE BUNTING Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH


 


SUMMARY

PRACTICE AND PROCEDURE: Restricted reporting order

Restricted Reporting Order relating to allegations of sexual misconduct – Whether Tribunal entitled to vary order in order to permit naming of Claimants against the objection of the alleged perpetrators – Held:

(a) that there were sufficient grounds to justify reconsideration by the Tribunal, notwithstanding a previous order prohibiting the naming of the Claimants - Hart v English Heritage [2006] ICR 655 considered;

(b) that it was in principle open to the Tribunal to prohibit the naming of the Claimants on the basis that their identification would necessarily constitute "identifying matter" as regards the alleged perpetrators - R v London North Industrial Tribunal, ex p. Associated Newspapers Ltd [1998] ICR 1212 considered; but

(c) that on the facts of the case it was not established that the identification of the Claimants would necessarily constitute identifying matter.

Observations on the meaning of "likely" and "members of the public" in s. 11 (6) of the Employment Tribunals Act 1996.


 


THE HONOURABLE MR JUSTICE UNDERHILL

1. This is an appeal against the decision of an Employment Tribunal to vary the terms of a restricted reporting order ("RRO"). It has been heard at 24 hours notice because the substantive hearing in the proceedings to which the order relates has already commenced and stands adjourned pending our decision.

THE PROVISIONS OF THE ACT AND THE RULES

2. It is convenient before we consider the details of the claim or the appeal to set out the relevant provisions of the statute and the rules. Section 11(1) of the Employment Tribunals Act 1996 provides, so as far as material, as follows:-

"Employment tribunal procedure regulations may include provision –

(a) …

(b) for cases involving allegations of sexual misconduct, enabling an employment tribunal, on the 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."

Sub-section (2) provides for publication of any "identifying matter" in contravention of a restricted reporting order to constitute an offence. A restricted reporting order is defined in sub-section (6) as 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."

"Identifying matter" is defined as:

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

The definition of "sexual misconduct" is (so far as relevant for present purposes):

"the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex. …" .

3. The regulations made pursuant to section 11(1) constitute rule 50 of the Employment Tribunal Rules of Procedure (being Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004). Paragraph (1) of rule 50 provides as follows:

"A restricted reporting order may be made in the following types of proceedings:

(a) any case which involves allegations of sexual misconduct;

(b) 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 a chairman."

Paragraph (8) provides (so far as relevant):

"Where a tribunal or chairman makes a restrictive reporting order-

(a) it shall specify in the order the persons who may not be identified;

(b) a full order shall remain in force until both liability and remedy have been determined in the proceedings unless it is revoked earlier;

…".

The reference to a "full order" picks up the fact that in paragraphs (3)–(5) there is provision for the making by the tribunal of its own motion of a "temporary restricted reporting order", which will have effect for only 14 days unless an application is made in the meantime for a full order. An application for a full order should be made under rule 11 in the usual way and will fall to be considered at a pre-hearing review (see rule 18(7)(g)) or at the substantive hearing. Paragraph (10) of rule 50 provides as follows:

"A tribunal or chairman may revoke a restricted reporting order at any time."

4. The effect of those provisions is that an employment tribunal is empowered to make an order prohibiting the identification not only of any person making an allegation of sexual misconduct but also of any person "affected by" such an allegation. That is on its face a very wide power, but in R v London North Industrial Tribunal, ex p. Associated Newspapers Ltd [1998] ICR 1212 Keene J. emphasised that in applying it it was necessary to have regard to the legislative purpose and also to the importance of the principles of freedom of the press and open justice recognised ever since Scott v Scott [1913] AC 437 (and latterly reinforced, if reinforcement were necessary, by Article 10 of the European Convention of Human Rights). However it is clear that, even on that basis, persons "affected by" allegations of sexual misconduct must include the alleged perpetrators of such misconduct (as well, at least sometimes, as other witnesses) and that accordingly in an appropriate case those persons may attract the protection of an RRO: such an order was indeed upheld by Keene J. in Associated Newspapers itself.
5. That represents a substantial statutory qualification of the normal rule that all evidence given in a court or tribunal shall be capable of being freely - and contemporaneously – reported: it is the aspect of contemporaneity which is relevant in the case of RROs because, as is clear from section 11(1)(b) (and see also rule 50(8)(b)), the order ceases to have any effect once the proceedings are concluded. The purpose of affording a measure of protection to complainants is clear enough and is explicitly set out in Associated Newspapers, namely that they might be deterred from bringing justified complaints by fear of publicity in relation to what are generally peculiarly sensitive matters. But the purpose of affording protection to alleged perpetrators is not the subject of any explicit discussion in Associated Newspapers or in any other authority to which we were referred (or indeed in the ministerial statements preceding the introduction of these provisions). That is a little surprising, since the protection afforded to alleged perpetrators is in marked contrast to the position of defendants in criminal prosecutions for sexual offences. However, in both Associated Newspapers and the earlier decision of this Tribunal in M v Vincent [1998] ICR 73 there is reference to the risk of witnesses - which would of course include alleged perpetrators - being put under "undue pressure" by the kind of peculiarly intense media coverage which often accompanies cases with a sexual element and to the effect that that might have on the way in which they were able to give their evidence. If that were the only relevant purpose of their attracting the protection of section 11 it would be easily reconcilable with the recognition in Scott v Scott that the right to report proceedings must be qualified where that is necessary in the interests of justice. It was however suggested before us that a further purpose of the protection is, or should in any event now be taken to be, to prevent unjustified intrusion on the privacy of alleged perpetrators - that is, irrespective of any risk to the administration of justice. Traditionally, the embarrassment and distress caused to a person confronted with what may ultimately be held to be false or exaggerated allegations of sexual misconduct would have been regarded as an insufficient reason for any restriction on the rule of open justice; and although there are some hints in the ministerial statements that a wish to mitigate such distress and embarrassment may have played a part in the enactment of the provisions in question, those hints are faint and are not picked up in the case law. However, what was submitted to us was that that traditional view may have to be revisited in the light of Article 8 of the Convention and that the very firm approach to intrusions on privacy deriving from Scott v Scott may have to yield to a more nuanced approach under which the different rights protected by Articles 8 and 10, and indeed Article 6, of the Convention have to be balanced in each case. For reasons which will appear we do not have to resolve that question here and, given the urgency with which the case has had to be prepared and indeed decided, we prefer to express no view about it.

THE HISTORY OF THE APPLICATION

6. The claims made in the proceedings can be summarised as follows. The Claimants are twin sisters. They are French nationals but of Moroccan ethnic origin and Muslim by religion. They are employed by Tradition Securities & Futures SA ("TSF"), who are a broking business based in France but with a large operation in London. For a period of two years the Claimants worked in TSF's London office; but in late 2006, as a result of the matters which give rise to the present proceedings, they went off sick, and they have not returned to work since. They have brought proceedings in the Employment Tribunal in which they allege sexual, racial and religious harassment; direct discrimination on the grounds of sex and/or religious belief and/or race and/or national origin; victimisation; and (in the case of one of them) unauthorised deduction from wages. Each Claimant has of course brought a separate case, but the two cases are very similar and have been ordered to be heard together. In each case there are (for reasons into which we need not go) in fact two separate complaints. The case is proceeding in the London Central Tribunal.
7. The respondents in each case were initially TSF together with seven individual employees who were said, between them, to have committed the majority of the acts complained of. The claims against the individual respondents have since been withdrawn; but the Claimants continue to rely on their alleged acts for the purpose of their claim against TSF. For present purposes we are only concerned with six out of those seven, to whom we will refer as "the named persons" (and who have been anonymised in the title to the proceedings in this Tribunal). The allegations against each of the named persons include allegations of sexual misconduct within the meaning of section 11 of the 1996 Act. None of the named persons are now employed by TSF, but each is due to be called as a witness at the hearing which has now commenced.
8. At a pre-hearing review on 14 November 2007 before Employment Judge Solomons, all of the parties (who at that stage still included most of the named persons), were agreed that a full RRO should be made. (A previous order had been made without a hearing by a Chairman, Ms Monks, but for reasons into which we need not go that required to be revisited.) However, the parties disagreed about the form of the order. TSF and the named employees contended that it should be drafted so as to prevent the identification of either the Claimants or the named persons "in relation to these proceedings". The Claimants agreed as to the identity of the persons to be protected but submitted that the prohibition should only be on their identification "in relation to any allegation of overt sexual harassment or overt sexual behaviour". The effect of the former formulation would have been that the whole range of the allegations could be reported but that neither the Claimants nor any of the named persons could be identified. The Claimants' formulation seems on the face of it more limited because it would in principle have allowed both themselves and the named persons to be identified and would only have prevented their identification in relation to the allegations of sexual misconduct. But in practice its effect would necessarily have been more wide-ranging because once the Claimants and/or the named persons had been identified as the complainants or the perpetrators, as the case might be, in relation to the allegations of racial and religious discrimination it would be evident that they were the relevant persons in relation to the sexual misconduct allegations: the practical effect would therefore be to prevent reporting of the sexual misconduct allegations at all. Employment Judge Solomons regarded that as unsatisfactory. He preferred the formula advanced by TSF and the named persons, which would allow the full range of the allegations to be reported, albeit without identifying individuals, and which he believed would be more straightforward to apply. Accordingly, by a reserved judgment dated 24 January 2008 he made an order in that form. The Claimants did not appeal.
9. On 6 March 2008 Bloomberg LLP, who are a well-known business supplying financial and business news services in various formats but who are not newspaper publishers, applied to be joined in the proceedings in order to have the order of Employment Judge Solomons varied: it has been established since the decision in Associated Newspapers that that is the correct procedure for a media organisation seeking to challenge an RRO. Bloomberg accepted that the RRO should remain in place but claimed that it should protect the identity of the Claimants and the named persons only in relation to the sexual misconduct allegations. At a hearing on 14 April 2008 Employment Judge Potter allowed Bloomberg to be joined and to make its application. The application was resisted by both the Claimants and the named persons; but in a reserved judgment dated 16 June 2008 Employment Judge Potter accepted Bloomberg's case and made an order in the terms proposed by it - we will refer to this as the "Potter order". The practical effect of that order, as Bloomberg acknowledged, was that the sexual misconduct allegations could not be reported at all because to do so would inevitably identify the Claimants, but it would allow them to be identified as complainants and/or alleged perpetrators in relation to the claims for other forms of discrimination. There was no appeal against that order.
10. As the result of the Potter order there have been some stories in the press which identify the Claimants and the fact that they have brought claims of, in particular, discrimination on the grounds of race and religious belief; but those stories have not of course referred to the sexual misconduct allegations. Nor, importantly - though this was not as such prohibited by the Potter order - have they identified any of the named persons.
11. That is how matters stood when the case came on for hearing before the full Tribunal on Wednesday 29 October. The hearing was chaired by Employment Judge Lewzey. She had been assigned to the case since the middle of the year and had already dealt with three interlocutory hearings, at one of which there had been a substantial contested issue about the making of an RRO involving other persons. The hearing is estimated to last no fewer than 55 days. The Claimants are represented by Mr James Laddie and Mr Jude Bunting and TSF by Mr Paul Goulding QC leading Mr David Craig. At the start of the first day various interlocutory matters were dealt with, but the Tribunal took the rest of the week as reading days.
12. The opening of the case attracted some press interest. As a result, TSF's solicitors wrote on 29 October to the main media organisations drawing their attention to the terms of the Potter order. The response was an immediate application by six such organisations, representing most of the Fleet Street press (though not the Telegraph or Mirror titles), to be joined in the proceedings in order to argue that the Potter order should be revoked or alternatively that it should be varied by removing the Claimants from the list of protected persons. The application for joinder was granted, and the Tribunal sat on 3 November - that is, last Monday - to hear the substantive application. The parties to the proceedings were represented by their respective counsel. The media organisations were represented by Mr Guy Vassall-Adams (who had in fact also represented Bloomberg in the application before Employment Judge Potter). The named persons, who were of course no longer parties, also applied for permission to be heard, which was granted. They were represented by Mr Michael Beloff QC, Mr Charlie Potter and Mr Mark Vineall. Shortly before the beginning of the hearing, Mr Laddie made it known that, in reversal of the Claimants' position theretofore, they no longer wished to have the protection of an RRO; and in the course of the hearing he formally, though without lodging any written application, applied for a variation to remove their names from the list of the persons whose identification was prohibited by the order.
13. We will have occasion in due course to review the parties' contention on the substantive question of the terms of the RRO; but we should mention at this point that TSF and the named persons took the preliminary point that the application should fail in limine because the question whether there should be an RRO and its terms had already been decided by Employment Judge Potter in June and there had been no material change of circumstances since then.
14. Employment Judge Lewzey gave the decision of the Tribunal at 2.00 pm the following day. The Tribunal refused to revoke the order altogether, but it acceded to the application to remove the Claimants from the list of the persons who could not be identified.

THE APPEAL

15. This is TSF's appeal against that order. There is no cross-appeal against the Tribunal's refusal to revoke the RRO altogether. The Claimants, consistently with their stance before the Tribunal, join with the media organisations in resisting the appeal. The appeal has, as we have said, come on at short notice. The parties are as below save that City AM, one of the media organisations which had made the application, has chosen not to appear. The named persons have brought their own, formally distinct, appeal, though we were in fact invited to, and did, make an order joining them as parties to TSF's appeal. We will refer to TSF and the named persons as "the Appellants" and to the Claimants and the media organisations as "the Respondents". Representation likewise has been as below save that Mr Pushpinder Saini QC now represents the named persons in place of Mr Beloff and Mr Vineall does not appear. We are grateful to all four counsel who addressed us - and indeed to those sitting behind them, who have plainly made substantial contributions - for their cogent and helpful written and oral submissions.
16. We consider separately (1) the Tribunal's decision to entertain the application and (2) the decision to vary the order.

(1) THE DECISION TO ENTERTAIN THE APPLICATION

17. The Appellants had argued below that the present case fell within the principles stated by this Tribunal in Hart v English Heritage [2006] ICR 655. In that case Elias P endorsed the observations made in previous decisions such as Maurice v Betterwear UK Ltd [2001] ICR 14, Goldman Sachs Services Ltd v Montali [2002] ICR 1251 and Onwuka v Spherion Technology UK Ltd [2005] ICR 567 to the effect that an employment tribunal should only review its case management decisions when there had been a material change of circumstances or some other exceptional reason justifying reconsideration (see especially paragraphs 31 – 33 of his judgment). That approach is of course essentially the same as is followed in the High Court: see Collier v Williams [2006] 1 WLR 1945. The reason is obvious: the well-worn metaphor about parties not being allowed more than one bite of the cherry was predictably deployed before us. In the present case it was submitted there were no such circumstances and no "other exceptional reason". The relevant issues had been extensively considered both by Employment Judge Solomons and by Employment Judge Potter. Both had had the principal authorities fully cited to them, and in the case of Employment Judge Potter the media, in the person of Bloomberg, had been a party.
18. The Respondents' answer was two-fold – first, that an application for revocation under rule 50(10) was not a case management order; and, secondly, that in any event reconsideration of Employment Judge Potter's order was justified in the circumstances of the present case. The Tribunal accepted both points. As regards the first, it said this:

"15. The first issue for the Tribunal is whether a change in circumstances is required to revoke all or part of the Potter Restricted Reporting Order. Rule 50(10) is quite clear:

"A Tribunal or Chairman may revoke a restricted reporting order at any time."

Mr Laddie argues that because of the general power to vary or revoke in rule 11(1) the existence of rule 50(10) accords a different kind of status to a restrictive reporting order. This was supported by Mr Vassall-Adams in his reply.

16. The Tribunal has taken into account that Rule 50(10) does not require a change of circumstances and that the decision in Hart v English Heritage [2006] ICR 622 has no direct application to a restrictive reporting order. A restrictive reporting order affects the media who are not parties to the proceedings. We agree that we have power to vary or revoke the restrictive reporting order without a material change in circumstance."

As regards the latter point, the Tribunal went through five alleged change of circumstance relied on by the Respondents. It rejected three, but it accepted two - namely (a) the fact that six media organisations who had not previously made representations about the RRO now wished to do so; and (b) the change in the Claimants' stance to which we have referred above - see paragraphs 17 and 19 of the Reasons, which we do not think it necessary to set out in full.

19. Although in support of the first of the Tribunal's reasons we have been addressed in some detail on the relationships between rules 10, 11 and 50 of the Rules of Procedure and the distinction between case management and other interlocutory orders, we have not found those submissions particularly helpful. The underlying principle in the various cases to which we have referred does not depend on precisely how the orders in questions are characterised. It seems to us plain that rule 50(10) does not permit repeated applications to be made for revocation ("variation" is not in fact expressly provided for), whether by the same party or by some new party seeking to be joined, when the relevant issues have already been properly considered by the tribunal. Mr Vassall-Adams sensibly accepted that it could not be the case that every new newspaper that sought to argue that an RRO should be revoked or varied could be permitted to do so whenever it chose, and indeed he pointed out that the tribunal would be able to exercise a discretion to exclude such a party on its (necessarily prior) application to be joined before any question of having to entertain the substantive application arose.
20. It follows that the Tribunal would have been entitled to look quite narrowly at the application for joinder made by the six media organisations in this case, particularly in view of the previous application by Bloomberg. But there were somewhat unusual circumstances here. Bloomberg's application was very different from that which the present applicants wished to make. It had not sought to revoke the order. Further, it was content with a situation in which in practice, for reasons already canvassed, the sexual misconduct allegations could not be reported at all: no doubt that reflects the rather different news values of what is essentially a financial and business reporting organisation as compared with a Fleet Street newspaper. In our view, it was within the scope of the Tribunal's discretion to regard those circumstances as sufficient to justify allowing the application to be made.
21. That was not the only circumstance on which the Tribunal relied: it relied also on the change of position on the part of the Claimants. There was an issue before us as to whether as a matter of law parties have a positive right not to be included in an RRO against their wishes: we consider that below. But assuming for present purposes that a person can in principle be named in an order in order to protect not his or her own interest but those of another person, the wishes of a person named on that basis must on any view be a relevant factor, and a change in those wishes would seem – absent any question of abuse - to be a sufficient reason to justify reconsideration. In any event we believe that it was entirely open to the Tribunal to hold that the Claimants had a good reason for changing their minds. It was told that they had become concerned, from the reports which had already appeared, that if the Potter order remained in place the focus of any reporting would necessarily be distorted - for example, they had already seen themselves described as "Muslim gold-diggers" - because the complaints of sexual harassment which were in fact at the heart of their claim would not be understood. It was within the Tribunal's discretion to treat that as a sufficient reason for a review.
22. Mr Saini advanced an argument, which is formally distinct, to the effect that even if the Tribunal was right to entertain the submission it should have proceeded on the basis that the Potter order could only be overturned if some relevant change of circumstances were shown. But that argument depends in substance on the same questions as we have already considered, and we reject it for the same reason.
23. We accordingly reject the submission that the Tribunal was wrong to entertain the applications to vary the order.

(2) THE SUBSTANTIVE DECISION

24. The essential submission of the Appellants before the Tribunal was that the likely result of the variation sought was that they would be likely to be identified as the alleged perpetrators of the sexual harassment complained of. At the risk of some repetition we can summarise the argument as follows:

(1) The Potter order prevented the Claimants being identified as making the sexual misconduct allegations.

(2) Since the Claimants had already been identified as persons bringing the other claims, if the sexual misconduct allegations were reported at all the Claimants would be identified as the parties making those allegations. The effect of the Potter order was accordingly to prevent the reporting of the sexual misconduct allegations at all.

(3) Thus the effect of removing the Claimants' names from the RRO would be to remove the, in effect, absolute ban on the reporting of the sexual misconduct allegations which had so far been in place.

We interpose to say that steps 1-3 were not controversial before us.

(4) If the sexual misconduct allegations were reported, it was likely - if not indeed inevitable - that the named persons would be identified. It was accepted that they would not be identified directly by the press, because they would still ostensibly have the protection of being named in the RRO; but many members of the public would, it was submitted, be able to identify them because once the allegations were reported at all, and the Claimants were known to be the complainants, it would be possible for common sense inferences to be drawn. That would particularly be so if different newspapers published different details which when put together made the identification clear (so-called "jigsaw identification"), particularly perhaps to people with a City background and most particularly to former colleagues and clients who would have the necessary background knowledge and expertise to draw the inferences in question. The most extreme example would be if one newspaper published the allegations of religious and racial discrimination, eschewing all mention of the allegations of sexual misconduct, and named the employees - as it would, if the position were viewed in isolation, be perfectly entitled to do; while on the same day, without any collusion or bad faith, a different newspaper with different editorial priorities published the sexual misconduct allegations but carefully said nothing to identify the named persons. Given the common link of the complainants anyone reading the two stories together could not fail to draw the (correct) inference that the named persons were the alleged perpetrators of the sexual misconduct. But, quite apart from that extreme possibility, the Appellants gave examples of various particular details which were, it was submitted, bound to become apparent and would inevitably allow interested members of the public to draw the necessary inferences. We will not out of abundance of caution identify those examples here, but they appear on the transcript of the hearing in front of the Tribunal in the submissions of Mr Goulding and were relied on again before us.

(5) Therefore it was necessary that the Claimants continue to be named in the RRO in order to prevent the identification of the named persons.

25. The Respondents' answer to that submission was again essentially twofold.
26. First, it was submitted that the whole argument was misconceived: the only basis on which a person could be included in an RRO was that that person sought the protection of such an order: a person could not be included against their will. If it was indeed the case that the identification of A, who did not wish for protection, would lead to the identification of B, who did, it was still not necessary for B's protection that A should be named in the order: B would be protected in his own right in such a case because naming A would lead to his identification. But it would be necessary to consider in the context of any contemplated publication whether the naming of A would in truth lead to the identification of B. That judgment would have to be made by the person responsible for the proposed publication - in practice, the relevant editor; but he would make it in the knowledge that section 11(2) creates an offence of strict liability and that if he made the wrong judgment he would be committing a criminal offence. The Respondents placed great reliance on a passage in the judgment of Keene J in Associated Newspapers, at pages 1216-7, where he said this:

"It is unnecessary … for the order itself to ban the identification of one person simply on the basis that it is likely to lead to the identification of the person whose identity it is truly sought to protect or conceal. It is for the press to exercise its judgment as to what is likely to lead to such identification and powerful sanctions exist if they transgress: see per Staughton LJ in X v Z Ltd [1998] ICR 43, 46 F."

In X v Z Ltd Staughton LJ had observed that the Court in that case was unable to decide whether publication of a particular fact would lead to the identification of persons named in the RRO under consideration, and he continued:

"It is for the press and anyone else who is disposed to publish to decide in the first instance whether that will be the case."

27. Secondly, the Respondents submitted that even if their first submission were wrong in the circumstances of the present case there was no sufficient justification for the inclusion of the Claimants in the order.
28. The Tribunal gave its decision on those issues in a single paragraph of its Reasons as follows:

"27. The final issue is therefore whether we should vary the Restrictive Reporting Order to lift it in relation to the two Misses Fariad. We have already made the points that the Claimants do not wish to be included and the impact of the Associated Newspapers case on this. In these circumstances, we consider that the Claimants should no longer be named in the Restrictive Reporting Order. We have to consider the impact of varying the Restrictive Reporting Order in this manner. It would allow the media to report the sexual harassment allegations but would limit the identification of the Respondent's witnesses to, for example, 'A' to 'F'. We are not persuaded that this would make it likely that the Named Persons would be identified because they are no longer employed b y the Respondent."

29. The Appellants submit that that reasoning fails to engage with any of the submissions made by them, and is wholly insufficient to enable them to see why they had lost. They further say that in so far as the reasoning is apparent it is plainly wrong: in particular, to deal with the argument that identification of the named persons was likely to follow once the Claimants were named simply by saying that the named persons were no longer employed by TSF was irrational.
30. Mr Vassall-Adams and Mr Laddie did not make much of an attempt to defend the adequacy of the expressed reasoning in paragraph 27, though they rightly pointed out that it was important that it be read in the light of the Tribunal's previous summary of the parties' submissions. We have every sympathy with the position of the Chairman in having to produce a full judgment on a number of sensitive points at very short notice, and in most respects the judgment is commendable for its clarity and succinctness. But on this point we are bound to agree that some fuller reasoning was required. None of the parties however wish for the matter to be remitted, and we were invited to decide the issues for ourselves.
31. We consider first the Respondents' primary submission. We agree that there is a clear conceptual difference between on the one hand a person - B - who qualifies for and seeks the protection of an RRO, as a complainant or an affected person, and on the other hand a person – A- who does not himself or herself qualify for, or in any event seek, such protection but whose identification is likely to lead to the identification of persons in the first category. Section 11 necessarily envisages, and rule 50(8)(a) confirms, that an RRO will be directed at the protection of a named individual or individuals in the first category, and the Respondents' submission that those are the only kinds of person who may be named in the order thus seems at first sight attractively neat. However, it does not follow from the fact that persons in the first category must be named that persons in the second category cannot be. It is common ground that there may often be cases where as a matter of fact it is clear that the identification of A is likely to lead to the identification of B. If that is so, we see no reason why the Tribunal should not spell that out in the RRO, so that everyone knows the position - particularly if there has been a dispute about that very question. While an order in general terms will sometimes be sufficient, and it is certainly unnecessary and undesirable for a Tribunal to attempt to spell out every possible form which identifying matter could take, there is much to be said for orders being as specific as possible: see, albeit in a different context, the observations of Brooke J in R v Southampton Industrial Tribunal, ex p. INS News Group Ltd [1995] IRLR 247 at paragraph 23 (page 250). We accept that A would in such a case be being "named", or "included", in the RRO in a different sense from B: B would be "being specified", as required under rule 50(8), whereas A would be being named on the basis that his or her identity constituted "identifying matter" within the meaning of section 11(6). If it were thought desirable, though strictly we cannot see that it is necessary, the distinction between the rationales for including A and B could be recognised by drafting the order so as to prevent the publication of any matter which was likely to identify B "including, without prejudice to the generality of that order, the identification of A".
32. We do not believe that that course is contrary to the observation of Keene J at paragraph 26 above. He said no more than that it was unnecessary for A to be named in the order - not that it was illegitimate to do so. His remark that it was "for the press to decide" does not state a principle that the tribunal must in every case leave the decision to the press. We accept that in many circumstances the tribunal may not be in a position to identify what matter may or may not lead to the identification of B and has perforce to leave it to editors to decide in the circumstances prevailing at the time of the potential publication. It is also right to acknowledge that relevant circumstances may change (though that by itself is not an absolute reason for failing to deal with the position as it is at the time that the order is made, since there is always the possibility of an application for subsequent revocation or variation). But none of that means that the tribunal is not entitled to specify particular types of identifying matter, including the identity of other individuals, where it feels able to do so and believes that doing so would conduce to the protection of the complainant or the affected person in question.
33. It is in fact in our view clear from another passage in Associated Newspapers that Keene J did not believe that only persons in the first category could be named in the order. In that case the RRO as made had prohibited the identification of (among others) the complainant, a Miss Kelly; the alleged perpetrator, a Mr T; and a further alleged victim of the perpetrator's misconduct, a Miss L. Miss Kelly had in fact made it clear that she did not seek the protection of an RRO. Keene J held that the order should not have covered her but it is important to note his reasoning. At page 1127 D-F he said this:

"Furthermore when one turns to consider the list of those covered by the restrictive reporting order it is impossible to discern on what basis the Chairman exercised her discretion to include some of those. One can readily understand that she felt it necessary that T against whom the allegations were being made should be covered and the same is true of Miss L. Both those obviously fell into the category of persons who one would expect could well be affected in the giving of their evidence by publicity identifying them. In so far as Mr Robertson seeks to challenge that inclusion, his attack is in my judgment unjustified but the same if not true of the complainant to the Tribunal, Miss Kelly, she clearly was someone who as a matter of legal power could be covered by a restrictive reporting order protecting her identity but she did not wish to have such protection. It is very difficult to see how identifying her would lead to problems for either Mr T or Miss L in giving their evidence; yet one seeks in vain to discover the basis of the inclusion of Miss Kelly in the order. Indeed there is nothing in the Reasons or the Chairman's affidavit to indicate that she took into account as a factor to be weighed in the balance the fact that Miss Kelly did not seek anonymity."

If the Respondents' submissions were right, all that Keene J would and should have said was that since Miss Kelly did not seek the protection of an order none could be made. But in fact his reasoning in the last three sentences expressly acknowledges that her stance was not decisive, but was simply "a relevant factor"; and it contemplates that it might have been appropriate to include her if her identification might have caused "problems" for the other witnesses who he believed required protection.

34. We therefore reject the Respondents' primary submission. If on the material before it the identification of the Claimants was likely to lead to the identification of the named persons by members of the public, it was open to the Tribunal to draft the order in a form which explicitly prohibited such identification; and indeed it ought to have so drafted it - and we, standing in its shoes, should do so - if there were or is any dispute about the matter such that it was desirable for the parties to know where they stand.
35. We accordingly turn on that basis to the Respondents' alternative submission. After careful consideration we believe that the material before us does not justify the conclusion that the identification of the Claimants will by itself be likely to lead to the identification of the named persons.
36. In reaching that conclusion we assume in the Appellants' favour that the word "likely" in section 11(6) has the meaning given to it in the judgment of Dame Elizabeth Butler-Sloss in Attorney General v Greater Manchester Newspapers Ltd (unreported, 4.12.01) - that is, that it refers not to "statistical probability" but to a real chance, or a real danger, of identification: that seems to us prima facie correct, but since the point was not (and we mean no criticism to the parties) very fully argued before us and is unnecessary to our decision we prefer to express no concluded view on it. We also proceed on the basis - which does seem to us clearly correct - that former colleagues or clients of the named persons, who do not at present know about the allegations of sexual misconduct against them but who may be more interested in making a "jigsaw identification" than ordinary readers and better placed to do so, are members of the public within the meaning of the statute.
37. Even on that basis, however, we are not satisfied that simply revealing that the Claimants have made allegations of sexual misconduct is likely to lead to the identification of the named persons. It is crucial to note that their names have not to date appeared in any publication; and even if the order is varied they almost certainly will not do so in future, even in the context of the other allegations, precisely because the press will be aware that such publication would in practice lead to their identification as the parties affected by the sexual misconduct allegations. That being so, we are concerned only with identification by inference from details already published, or from comparison between, and accumulation of, details published hereafter in different publications. We have looked carefully at the particular matters relied on by the Appellants as likely to lead to the identification of the named persons, as summarised in Mr Goulding's submissions: out of an abundance of caution we will not spell them out in this judgment. Not all the matters that are relied on as likely to lead to identification have in fact been published, and those that have been do not seem to us likely to have that result. No doubt members of the public will appreciate that allegations of sexual misconduct are being made against employees at TSF - that much is inevitable - but TSF is a large employer and the number of people employed by it over the last few years must be larger still. No other identifying detail has to our knowledge been published, and it is up to the press to make sure that it stays that way. If they do their job responsibly and carefully it does not seem to us inevitable that identifying detail - that is, detail likely to lead members of the public to identify the named persons as the alleged perpetrators of the sexual misconduct - will be published.
38. We are reinforced in that conclusion by the fact that it was also the view of the Tribunal, which had by the time of its decision had the advantage of two-and-a-half days' reading and, in the case of the Chairman, extensive previous interlocutory experience of the case including dealing with other RRO issues. Although because of the shortness of the expressed reasoning, we have felt feel obliged to reach our own decision it does not follow that we are obliged to ignore the Tribunal's decision altogether.
39. Mr Vassall-Adams has emphasised the care with which editors and their advisers will consider what details, if any, can properly be published and has said that there will be communication between the different legal advisers. We give some weight to those assurances, but, whether they had been given or not, this is a situation of the kind referred to by Keene J. in the passage referred to at paragraph 26 above, where it is inherent in the situation that the press must exercise its judgment in the knowledge of the sanctions that will apply if it gets it wrong.
40. We do not believe that in what may be a complex situation we can usefully seek to specify in the order or indeed in this judgment what kind of matter is or is not likely to lead to the identification of the named persons. The press will have to be very careful that what is said, if anything, about such matters as the nature of the Claimants' and the alleged perpetrators' work, the dates of the alleged incidents and of the named persons' employments and so forth; and if the reporting is bland or unparticularised as a result that cannot be helped. But we are not ourselves in a position to make a catalogue of possible identifying matter and we will not do so. Indeed, we do not with respect think that it was right for the Tribunal in paragraph 27 of its Reasons to state unequivocally that the identification of the Claimants will not be a breach of the order. The most that it could or should have said - and the most that we have said - is that the material before it did not establish that naming the Claimants as having made complaints of sexual misconduct would by itself be likely to lead to the identification of the named persons as the alleged perpetrators; but if the circumstances change, or turn out to be different in some material respect from those of which either the Tribunal or ourselves were aware, that conclusion could turn out to be wrong. Mr Vassall-Adams expressly accepted this, and he was right to do so: having argued, through him, against any blanket pre-determination of what might constitute a breach his clients cannot expect blanket pre-clearance either.
41. There is one further aspect of the case that we should mention. During the hearing, and with some encouragement from us, there was quite extensive discussion of how to approach and resolve the conflict between the rights of a party or affected person who wants the protection of an RRO and the rights of such a person who positively wants full and contemporaneous reporting. But on reflection it seems clear that those broader issues do not arise in the particular circumstances of this appeal. There has been no challenge before us to the Tribunal's conclusion that the named persons are entitled to the protection of an RRO. That being so, they have under the statutory provisions an absolute right not to have identifying matter published, and if we had concluded that the identification of the Claimants as having made allegations of sexual misconduct inevitably constituted identifying matter that would have been the end of the matter. If the Claimants wished to argue that their interest in having the case fully and contemporaneously reported should prevail over the named persons' interest in having their identities protected, such an argument would have to be made in the context of an application to revoke the RRO in the named persons' favour: that was not the Claimants', or indeed the media organisations', stance before us.
42. For those reasons this appeal is dismissed.