Restricted reporting orders

Associated Newspapers Ltd v London Industrial Tribunal [1998] IRLR 569 (High Court)

The increase in the use of restricted reporting orders in sex discrimination cases in recent years is remarkable. In so many of the cases the orders have been sought by the employers and alleged harassers, and not by the victims of harassment whom the orders were originally designed to protect.

Motivated by concerns about the potentially damaging publicity that such cases can attract, applications by employers are now commonplace. However, following this decision applications by employers are now less likely to be successful.

Rule 14 (1) of the 1993 Industrial Tribunals (Constitution and Rules of Procedure) Regulations provides that "in any case which involves allegations of sexual misconduct the tribunal may ...make a restricted reporting order." A restricted reporting order is defined as an order prohibiting the publication of "identifying matter" likely to lead to the identification of an individual as "a person affected by, or as the person making, the allegation."

In the Associated Newspapers Ltd case, involving an allegation of sexual misconduct by a Council official, the Tribunal granted an order, not only in respect of the alleged harasser, and another employee allegedly harassed at the same time, but also in respect of the employer, the Council's Chief Executive, a witness, and the complainant herself, even though she was not in fact seeking the protection of an order. The High Court, on the application of a newspaper seeking to print details of the case, reversed the Tribunal's decision. They held that a Tribunal should not grant a "blanket" order covering all the main parties in the action.

Instead, they should consider each individual in respect of whom an order was being sought, person by person, and decide in relation to each whether they were a person affected by the allegation of sexual misconduct. "It is vital that the decision maker does consider that scope on an individual-by-individual basis. A blanket approach to such a prohibition is improper."

Despite the fact that the Regulations were originally designed to protect the victims of harassment, to try and ensure that the threat of embarrassing and intrusive reporting did not deter potential complainants, the High Court appear to endorse the granting of orders to cover an alleged harasser, as well as a complainant. However, they do not accept the argument that the employer should not be named simply because to reveal it would reveal the identity of the individuals involved in the case.

They reject this as irrational, in that it is the primary responsibility of the media to ensure that in publicising a case, the identity of the person with the benefit of the restricted reporting order is not revealed. Interestingly, the Court leave open the question of whether a limited company, as employer, could be "a person" affected by an allegation.

Although it can be doubted whether the protection of restricted reporting orders should extend beyond potential complainants to cover alleged harassers as well, the High Court's robust restriction on the use of these orders is welcome.