Employers with experience of dealing with employment tribunals know that disaffected current and former employees can often view them as a way of causing embarrassment to the employer. Frequently, claim forms include details which are quite irrelevant to the claims made. On the other hand employment tribunals can provide a forum for claimants, particularly those making claims related to whistleblowing, to expose serious wrongdoing by employers, regardless of the potential to cause embarrassment. There is therefore a balance to be struck.
As with other proceedings employment tribunals have the right to make restricted reporting orders in appropriate cases. The scope of such an order was recently considered in the Employment Appeal Tribunal in the appropriately anonymised matter of EF & NP v AB, CD and others. Claims in the employment tribunal alleging constructive unfair dismissal.sexual harassment, sex discrimination, victimisation and unlawful deductions from pay had been dismissed in June 2013. The claims had included lurid allegations of sexual harassment and abuse by EF in some of which his wife, NP, was alleged to have been involved.
AB had threatened to publish the allegations as well as disclosing text messages and photographs regarding sexual activities alleged to have involved EF and NP. EF obtained an injunction restraining publication in proceedings in the High Court which also made a full reporting restrictions order save that AB was entitled to commence employment tribunal proceedings.
The employment tribunal proceedings were commenced on 3 May 2012 and a temporary reporting restrictions order was made on 16 May. The order was converted into a full order on 13 August. It was noted that the proceedings involved allegations of the commission of sexual offences. Notwithstanding the reporting restrictions when the hearing took place there was press coverage from which it was possible to identify EF.
When the judgment was issued it emerged that AB was the managing director of CD and EF was the group CEO (what a lot of initials!). AB had alleged that EF had encouraged him to attend sex parties where he had been abused by EF and NP for almost 13 years. The tribunal found that the sex parties did take place between 2001 and 2009 but they petered out long before AB resigned in February 2012. The tribunal rejected AB’s claim that EF engaged in unwanted sexual activity with him at a party in 2001. Overall many parts of AB’s evidence were found to be unreliable and untrue in material respects.
In February 2012, following whistleblowing allegations about AB made by an anonymous employee EF said that AB wanted £10 million to leave and sign a three years’ non-compete clause, for the company to write off his debt and for his daughters (also employees) to be paid £100,000 each to leave. AB said that if the deal was not done he would “see the Respondents [including EF] in court and take others down with him”. Two days later AB threatened to publish allegations to the public and shareholders including “abuse of powers of a sexual nature by CEO [EF]”.
Unsurprisingly the tribunal concluded that AB’s activities were part of a scheme to exact revenge for the perceived failure of EF to protect him from the whistleblowing allegations.
AB was suspended and resigned on 14 February. Shortly afterwards he sent an email attaching a sexual photograph of NP to the partners in one of the respondents.
The tribunal concluded that AB knew that his allegations were false and that his motivation in making them was dishonest.
This is a claim which should never have been brought and begun should not have been continued. It is wholly without any justification or merit at all. We consider that the claimant’s motivation in bringing the proceedings and continuing with them was not to bring before the tribunal a legitimate claim for compensation but as a part of his campaign of revenge against the 2nd respondent and to blackmail the corporate respondents into paying him a very large sum of money to which he had no legitimate claim at all. Having regard to the evidence that has been presented throughout the case, from the initial reading of the statements presented as the claimant’s evidence in chief to the end, it has been clear that the claim was wholly devoid of any merit whatsoever.
The reporting restrictions order remained in force but only until the end of 21 days from 14 August 2013 or, in the event of an appeal, its determination. Factors in not making the order permanent included the entitlement of employees to have the right to know what had been going on in the company for which they worked.
the Employment Appeal Tribunal disagreed. Allegation concerning sexual conduct related to events which took place in private between adults in circumstances in which there was a reasonable expectation of privacy. Even if EF had shown little regard for privacy it was also important to consider NP’s entitlement to a high level of privacy, particularly taking into account the nature of the allegations. It would be impossible to identify EF without NP being identified as well. Disclosure would not contribute to a debate of public interest, for the employees or anyone else. It was also relevant to take into account AB’s motivations in bringing the proceedings: revenge and blackmail. On balance the right to privacy prevailed over the interests of open justice. Accordingly the restricted reporting order was extended indefinitely.