One of the fundamental tenets of the English and Welsh justice system is that justice should be open, and accessible. This guarantees the right to a fair trial, which Lord Bingham of Cornhill describes as “a cardinal requirement” of the rule of law.
However, there are occasions when, whether for public interest, personal safety, or other reasons, this right is derogated from. In these cases, the court will have to undertake a balancing exercise, weighing up the various competing rights.
The background to A v Sun Mark Limited
The judgment on the Rule 50 issue was promulgated at the same time as the Public Judgment and Reasons following the hearing, in relation to an application by the Respondents for anonymity.
The relevant law
The judgment looked at three pieces of domestic law and the European Convention on Human Rights. The first of these was the Employment Tribunals Act 1996, in which Section 11 allows the tribunal to restrict the reporting and remove the identification of parties in cases relating to sexual misconduct.
The second was the Rule 50 issue referred to above, taken from the Employment Tribunal Rules of Procedure 2013. Rule 50 states that a tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice.
The Claimant’s identity was prevented from being published in any form during her lifetime as a result of Section 1 of the Sexual Offences (Amendment) Act 1992, because what she alleged constituted a sexual offence.
The ECHR issues to be balanced were Article 6 (Right to a Fair Trial), Article 8 (Right to Private Life), and Article 10 (Freedom of Expression).
The balancing exercise related specifically to the anonymisation of Mr Sharma, who was a manager at Sun Mark Ltd. The considerations in support of his anonymity were:
- Publication would cause embarrassment to him in his community, the Sikh community;
- Publication would add strain to his family, including marital relationships;
- It was likely that his wife and children would suffer embarrassment; and
- Possibly some future employment damage.
The considerations against his anonymity were:
- Mr Sharma was a manager, and so future employees would have an interest in knowing possible difficulties if working for Sun Mark Ltd;
- Mr Sharma was found liable for persistent sexual harassment; and
- Justice in this country operates in public unless there are very good reasons not to.
The decision of the Employment Tribunal
On balance, the tribunal found that the open justice and persistent sexual harassment nature of the case, combined with the fact that Mr Sharma was a manager, outweighed the personal, family, and community factors in support of anonymity. As such, the application of the Respondents was refused.
Our lawyers’ comments on the case of A v Sun Mark Limited
This case shows that the Employment Tribunal will generally operate in public – and not anonymise parties – unless there are significant public policy reasons to do so. Parties may seek to impose anonymisation orders on a case but unless there are very good reasons for imposing such an order such attempts will not normally succeed.