Posted by Gemma Ospedale, Partner
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Risk of public belief did not justify anonymity
In BBC v Roden the EAT has overturned a Tribunal decision which took into account the risk of public belief in the truth of unproven allegations of sexual harassment in an unfair dismissal claim in its decision extend an anonymity order. The EAT held that the public interest in open justice in such a case outweighed the individual’s right to a private life and that the anonymity order should not have been made.
The case concerned an individual who worked for the BBC until the end of his fixed term contract in May 2013. The BBC had been informed by a third party of allegations of a serious sexual nature and was subsequently told by police that the information suggested he posed a risk to young men. The BBC’s investigations into the allegations caused them not to renew his contract and he lodged a claim for unfair dismissal among other things. The disclosure in the proceedings established that he had been previously dismissed from earlier employment for gross misconduct following allegations made against him by 2 young people. He has been arrested but never charged. He had not disclosed the circumstances of this to the BBC.
The unfair dismissal claim was dismissed by the Tribunal which noted that, while it was a serious matter to dismiss an employee without giving him the opportunity to contest the allegations, in these circumstances it was a reasonable response. Judgment was given on an anonymised basis because the Judge took the view that allegations had been made against the Claimant which, while not directly in issue, were nonetheless produced in evidence at the hearing. The Judge considered that if the allegations were reported outside the Tribunal there would be no subsequent report as to whether they had been upheld or dismissed and the Claimant would not have any opportunity to obtain a finding that the allegations had not been proven. The Judge took the view that allegations which had not been proven one way or the other had an unpleasant tendency to stick and it would not be fair on the Claimant to allow all this to be made public.
The BBC appealed to the EAT which allowed the appeal against the privacy order. It considered that the Tribunal Judge had not carried out a proper balancing exercise between the public interest in open justice and the Claimant’s right to a private life under article 8 of the European Convention on Human Rights.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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