In BBC v Roden, the EAT held that a tribunal was wrong to take into account the risk of the public believing in the truth of unproven allegations of sexual harassment against an unfair dismissal claimant when deciding to extend an anonymity order. The public interest in open justice in such a case outweighed the individual’s right to a private life.
R worked for the BBC as a development producer until his fixed-term contract ended in May 2013. By then, the BBC had been informed by a third party that serious allegations of a sexual nature had been made against him, and it was later informed by police that they had information suggesting that he posed a risk to young men. The BBC investigated the allegations and decided not to renew R’s contract. R lodged claims of unfair dismissal, among other things. Following disclosure in the proceedings, the BBC learned that R had been dismissed from earlier employment for gross misconduct after two young people made allegations against him, in respect of which he had been arrested and bailed but never charged. R had not disclosed the circumstances of this dismissal to the BBC during the course of its investigation.
An employment judge dismissed the claim of unfair dismissal, noting that while it was a serious matter to dismiss an employee from his employment in circumstances where he has not had the opportunity of contesting the allegations against him, it was nonetheless a reasonable response. The judge promulgated his judgment on an anonymised basis. He took the view that allegations of serious sexual assaults had been made against R which were not directly in issue in the proceedings but about which evidence was given at the hearing. The judge noted 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 R would not have any opportunity of obtaining a finding that the allegations against him had not been proved. He observed that the public reaction to allegations of sexual offences can be ‘particularly virulent’ and that it ‘can be difficult for an individual to shake off such allegations once they have been made public’. The BBC applied for this order to be set aside but, at a further hearing, the employment judge refused. The BBC appealed to the EAT.
The EAT allowed the appeal against the privacy order. The employment judge had failed to carry out a proper balancing exercise between the public interest in open justice and R’s right to a private life under Article 8 of the European Convention on Human Rights. Furthermore, the judge’s acceptance that there was a risk that the public would conclude that R had actually committed the alleged offences was not a valid reason for continuing the anonymity order. The Supreme Court established in Guardian News and Media Ltd v City of Westminster Magistrates’ Court 2010 UKSC 1 that the risk of the public drawing unjustified inferences was not a reason for granting anonymity in a case where the unproven allegations related to terrorism offences. The EAT considered that the same principle fell to be applied in the present case. The public interest in open justice is regarded as outweighing the Article 8 rights of a person suspected of a serious criminal offence. The EAT noted that the public has become accustomed to the early identification of such persons (even before charge in many cases) and is trusted to distinguish between an allegation and a finding of guilt.
The EAT also held that the judge erred in considering the weight to be attached to R’s Article 8 rights. R had chosen to bring proceedings against the BBC in a public tribunal knowing that he had not been honest about the circumstances of his earlier dismissal and the allegations that had previously been made against him, and was found to have made false statements to the BBC and in his evidence before the tribunal. The EAT accordingly set aside the anonymity order and directed that R be identified by name in the judgments.
Thomson Reuters (C)