Employment law

Tribunal procedureChief Constable of the West Yorkshire Police v A (2000) IRLR 465

A tribunal made a restricted reporting order preventing the identification of a transsexual who was bringing a sex discrimination claim.

On the evidence, disclosure of her identity would have deterred her from pursuing the complaint.

However, there was no allegation of 'sexual misconduct' or commission of a 'sexual offence' so as to fall within the statutory rules which govern restrictions on reporting.

Her claim succeeded.

The question arose whether the restricted reporting order should apply in respect of an appeal against the tribunal's decision on liability.

The president of the Employment Appeal Tribunal (EAT) ruled that it has an inherent jurisdiction under Article 6 of the Equal Treatment Directive to make a restricted reporting order, even though such an order could not be made under UK legislation.

The directive requires an effective remedy to be conferred on those able to rely on it, such as this applicant, who could rely on the directive against the police as an emanation of the state.

Rule 23 of the EAT Rules was defective or inadequate in that it is a procedural rule which, on the facts of the present case, left the exercise of rights conferred by Community law virtually impossible or excessively difficult.

Thus the EAT was entitled to exercise its jurisdiction under the directive to grant an order protecting the applicant, in perpetual terms, from identification as the individual concerned in the appeal.

Significantly, the president said: 'It has to be recognised that such matters as freedom of expression, freedom of the press and the right to a public hearing have, in some circumstances ...

countervailing factors operating, such as freedom from discrimination and respect for privacy and ...

the need for access to an effective remedy and the due administration of justice'.

The nature of the order to be made would be limited so as to do no more than necessary to enable the applicant fairly to assert her rights in the EAT.

Reporting would be restricted only so far as it might jeopardise the secrecy obtaining in relation to her identity.

The editor of the IRLR is surely right to characterise this as 'a bold decision'.

Intriguingly, the editor also points out that the absence of legal aid in employment tribunals may be another example of circumstances which could be regarded as making it 'excessively difficult' to exercise rights under community law or human rights law.

This is a topic which seems ripe for development.

Attorney-General v Wheen (2000) IRLR 461

This seems to be the first case in which the EAT has made a restriction of proceedings order against a vexatious litigant.

Over a period of time, Mr Wheen instituted 13 separate proceedings before employment tribunals, all of which failed.

In some cases, the tribunal commented upon their being frivolous or vexatious.

In other cases, he was required to pay a deposit as a condition of being allowed to proceed and then he did not take the matter further.

The president of the EAT noted that: 'Discrimination is generated or can often be generated merely by the personal characteristics of the individual concerned.

It may fairly be said that for that reason facts justifying the launching of a claim for discrimination are more likely to occur to an individual than are, for example, the facts of an ordinary civil cause of action.' Thus, the president was cautious in making a restriction of proceedings order in a case involving allegations of discrimination.

But, given that tribunals and the EAT are very busy, giving time to Mr Wheen's unnecessary proceedings was to deny that very same time to parties with real grievances.