This week, we investigate the Employment Appeal Tribunal (EAT) decision in F v J [2023] EAT 92, which addresses the critical issue of anonymity orders in employment tribunal proceedings, particularly concerning individuals with disabilities.  If you missed our March newsletter, click here to read it.

The claimant, identified as F, was a university lecturer diagnosed with Autism Spectrum Disorder (ASD), a condition acknowledged and undisputed by the respondent, J. F initiated proceedings in the Employment Tribunal, alleging disability discrimination. Given the sensitive nature of his medical condition and its potential impact on his professional and personal life, F applied for an anonymity order. He contended that public disclosure of his identity in connection with his ASD diagnosis would violate his right to privacy under Article 8 of the European Convention on Human Rights (ECHR) and the protections afforded by the Equality Act 2010.

The Employment Tribunal denied F’s application, emphasising the principle of open justice. The tribunal concluded that the public’s right to access information about legal proceedings outweighed F’s privacy concerns. F appealed to the Employment Appeal Tribunal (EAT).

The EAT took a comprehensive review of the case. The central question was whether the initial tribunal had erred in its refusal to grant the anonymity order. The EAT scrutinised the balance between the fundamental principle of open justice and the individual’s right to privacy, especially in the context of sensitive health information.

The EAT identified a critical oversight in the original tribunal’s approach: the failure to adequately consider F’s Article 8 rights under the ECHR. The EAT emphasised that while open justice is at the centre of the legal system, it is not absolute and must be weighed against competing rights, such as the right to private and family life. The judgment highlighted that disclosing F’s identity, along with his ASD diagnosis, could have significant repercussions on his personal and professional life, potentially leading to stigma and discrimination.

A key insight for employers here is that employees with ASD and similar conditions may not want their conditions disclosing as a stigma is still being attached to those who have the condition. The potential arising from stigma from those who hold stereotyped vies of autisms emphasises the need for data privacy for health data.

Furthermore, the EAT noted that the tribunal had assumed that F’s disability was already in the public domain, thereby underestimating the potential harm of disclosure. This assumption led to a misjudgement in balancing the principles of open justice against F’s privacy rights. The EAT concluded that the tribunal’s decision was legally flawed. The EAT allowed the appeal, quashing the tribunal’s refusal of the anonymity order. The case was remitted for reconsideration, with explicit instructions that it be assigned to a different judge.

Takeaway Points

The EAT’s decision in F v J [2023] EAT 92 emphasises the balance the tribunal must maintain between the principle of open justice and the protection of individual privacy rights, particularly concerning sensitive health information. Key takeaways from this case include:

  1. Autism and ASD are conditions that are stigmatised. Stereotypes are sometimes applied leaving people feeling shunned and stigmatised.
  2. Some employees treat medical privacy as very important.
  3. Medical privacy is a human right requiring consent and here, the human right outweighed the right to open justice that comes with the right to a fair trial.

If you or someone you know are dealing with a similar issue, please contact us for further assistance.