Anonymity order should have been considered by the tribunal given references to highly sensitive matters


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The Employment Appeal Tribunal (EAT) considered whether an employment tribunal was wrong not to anonymise the parties' names and redact certain passages in a judgment because of references to the claimant's transgender status and sensitive issues relating to his mental health in X v Y.

The claimant brought claims for unpaid wages and holiday pay which were out of time.  When considering whether to exercise its discretion to extend the time limit the tribunal considered the claimant's personal situation, including certain mental health issues and his transgender status.  When he received a copy of the judgment the claimant wrote to the tribunal requesting that it be anonymised and that references to his transsexuality and his mental health history be deleted in order to protect his privacy.  When the tribunal declined to make an anonymity order the claimant appealed to the EAT.

The EAT made an anonymisation order noting that the employment tribunal should have considered of its own volition whether to make such an order under rule 50 of the Employment Tribunals Rules of Procedure 2013.  The claimant was not legally represented and so it could not be assumed that he was aware of his right to apply for an anonymisation order, and the tribunal was aware of the sensitivities surrounding the claimant's transgender status and his fragile mental health.  However, the EAT emphasised that there is no definite rule that all cases dealing with transsexual status or sensitive mental health issues must be anonymised.  It held that it would very rarely be proportionate to delete sections of a judgment where an anonymisation order was available to protect an individual's privacy rights.

Take note: Rule 50 of the Employment Tribunal Rules of Procedure 2013 provides that a tribunal can make an anonymisation order at any stage of the proceedings, on its own initiative or on application.  Where, as in this case, the claimant has mental health issues, transgender status or other sensitive issues where their privacy may need to be protected, a tribunal should consider whether an anonymisation order is an appropriate means of doing this, especially where the claimant is not legally represented.

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