RESTRICTED REPORTING ORDERS

A guide on preserving privacy and restricting disclosure in employment tribunal proceedings from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you are involved in an employment tribunal claim, especially if you are unrepresented, an employment tribunal either you, your employer or ex-employer may want to apply for an order preserving privacy and restricting disclosure (otherwise known as a restricted reporting order).

(1) What is a restricted reporting order?

Employment tribunals are governed by the Employment Tribunals Act 1996 and the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. A restricted reporting order is specifically governed by rule 49 of the Employment Tribunal Rules of Procedure 2024, which is a schedule to the Regulations.

A restricted reporting order is designed to protect the privacy and anonymity of the specified parties, witnesses or other persons who are mentioned in an employment tribunal claim, where the evidence of those involved in the claim would normally be held in public.

An employment tribunal may, at any stage of the proceedings, and either on its own initiative or following an application, make a restricted reporting order with a view to preventing or restricting the public disclosure of any aspect of the employment tribunal claim, so far as it considers necessary:

in the interests of justice
to protect a person’s rights in accordance with the European Convention on Human Rights
protection of confidentiality

of any person involved with the tribunal proceedings.

Before making a restricted reporting order, an employment tribunal will have to give full weight to the principle of open justice and the European Convention on Human Rights, in particular, the right to freedom of expression (Clifford v Millicom Services UK Ltd and others).

A restricted reporting order may include:

an order that a hearing that would otherwise be in public be conducted, in whole or in part, in private
an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record
an order for measures preventing witnesses at a public hearing being identifiable by members of the public
a restricted reporting order within the terms of section 11 or 12 of the Employment Tribunals Act 1996 (ie matters relating to sexual misconduct and disability).

An employment tribunal can make a restricted reporting order on its own initiative without a hearing, and before either, you or your employer or ex-employer has had the opportunity to make representations.

A restricted reporting order must specify the persons whose identity is to be protected and may (but need not) specify the identifying matter whose publication is prohibited.

The duration of a restricting reporting order would not normally extend beyond the promulgation of the decision on liability (ie the date the written decision is sent to the parties). However, an employment tribunal can make a restricted reporting order that extends beyond the proceedings.

A tribunal must display a notification that a restricted reporting order has been made on the tribunal listings notice board at and on the door of the room in which the proceedings affected by the order are taking place.

A restricted reporting order does not automatically expire if a claim is withdrawn.

(2) Can you challenge a restricted reporting order?

You, your employer or ex-employer, or any other person with a legitimate interest in the employment tribunal claim, who did not have the opportunity to make representations before a restricted reporting order was made, may apply in writing for it to be revoked or discharged. This can be done by either written representations or at a hearing.

The category of ‘other person’ with a legitimate interest could enable media publications to challenge the making of such orders.

(3) What happens if you breach a restricted reporting order?

If you, your employer or ex-employer, or any other person who publishes information in breach of a restricted reporting order will have committed a criminal offence, which is punishable with a fine not exceeding level 5 on the standard scale on summary conviction. However, it is a defence if publication took place when the publisher was not aware, and neither suspected nor had reason to suspect, that an offence was being committed.

Comment

If you are seeking to make a restricted reporting order or wish to oppose one, expert legal advice should be sought as soon as possible.

This blog does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.