Anonymity Orders: A Balancing Act

In the recent Employment Appeal Tribunal (EAT) case of Piepenbrock v The London School of Economics and Political Science [2022] EAT 119, the EAT granted an indefinite anonymity order to protect Ms D, a non-witness and non-party to proceedings.

In granting the anonymity order the EAT was required to carry out a balancing exercise between the principles of open justice and various rights conferred by the European Convention of Human Rights (ECHR). In this case, due to the potentially extreme effects on Ms D of not granting the Order, the EAT held that the right to a private life under Article 8 of the ECHR outweighed the importance of the principles of open justice, Dr Piepenbrock’s (the claimant) right to a fair trial under Article 6 ECHR and the right of freedom of expression under Article 10 ECHR.

Background

Dr Piepenbrock was a fellow at LSE. While delivering lectures in the US in 2012 he was assisted by a younger female colleague, Ms D. Ms D raised a grievance against Dr Piepenbrock concerning sexual harassment but Dr Piepenbrock refuted this and claimed that, in fact, she had made advances to him, which included exposing herself and stalking him. Following the allegations, he was absent due to sickness for 20 months due to depression and anxiety.  His fixed term contract was not renewed and his employment terminated on 2 September 2014.

Mr Piepenbrock brought a claim in the Employment Tribunal (ET) for unfair dismissal, victimisation and discrimination arising from disability. He also brought claims in the High Court for personal injury and defamation. Mr Piepenbrock made an amendment application to the ET to add new claims, which was refused. He appealed to this refusal to the EAT.

Meanwhile, LSE made an application for an anonymity order to protect Ms D’s identity, who, though not a party to proceedings, faced severe reputational ramifications if she was identified by documentation lodged with the appeal.

Before the EAT heard the anonymity application, the ET dismissed all of Dr Piepenbrock’s claims and found the allegations against Ms D to be untrue. It held that he was not a reliable or credible witness, that he was “malicious and actively destructive”, and that his “vilification” of Ms D on a website over which he had control, by referring to her as a stalker and making sexual references to her, showed “his willingness to destroy her reputation”. These were important considerations in the anonymity application hearing.

Legal Framework

Under Rule 50 of the ET Rules, the ET may make an anonymity order or restricted reporting order where it considers it necessary in the interests of justice, in order to protect the ECHR rights of any person or, in certain circumstances, in relation to confidential information. Although the EAT rules do not contain any express provision similar to rule 50 of the ET Rules, in the EAT’s view “there is no doubt that the EAT has a jurisdiction analogous” to rule 50 of the ET Rules, by virtue of section 30(3) of the Employment Tribunals Act 1996.

Balancing Act

The EAT carried out a balancing exercise between the competing considerations to decide whether or not the Order should be granted. Relevant considerations included:

1. Ms D’s youth and vulnerability relative to Dr Piepenbrock;
2. the fact that the allegations made by Dr Piepenbrock against Ms D were found to be untrue
3. Dr Piepenbrock’s broader conduct, such as publishing derogatory statements against Ms D on a website over which he had control;
4. any previous publicity was not thought to lessen the seriousness of future publicity on Ms D;
5. the lurid nature of the untrue accusations made against Ms D and the trauma this and the proceedings more generally caused her;
6. Dr Piepenbrock would likely misuse any judgment and related paperwork to “name and shame” Ms D and damage her reputation;
7. it was also important that the hearing of Dr Piepenbrock’s appeal was comprehensible without identifying Ms D; and
8. the fact that Dr Piepenbrock’s central allegation against Ms D was lurid and untrue substantially lessened the weight to be attributed to the right to freedom of expression.

In the circumstances, the EAT found that Ms D’s right to a private life outweighed the principle of open justice and freedom of expression under Articles 6 and 10 ECHR. The EAT found that an anonymity order was “in the interests of justice” given Mr Piepenbrock would likely use the EAT judgment “in a way that is an abuse of the system and contrary to the interests of justice and that would have a serious detrimental effect on Ms D”.

The Order was granted; it anonymised Ms D in the EAT judgment, controlled public access to documents lodged with the EAT and prevented any disclosure of Ms D’s identity.

Conclusions

This case demonstrates that:

1. Although the EAT Rules do not contain any express provision on the point, the EAT may grant an anonymity order where it is in the interests of justice to do so.
2. The Courts and Tribunals will rely on facts specific to each case to determine whether an anonymity order should be granted and, in coming to a decision, will balance the competing interests between upholding the principles of open justice and protecting the ECHR rights of the relevant individual.