by Laurie Anstis on June 12, 2011
Following on from the “super-injunction” furore there has recently been criticism in the press of so-called “gagging orders” issued by employment tribunals, which prevent the naming of people involved in employment tribunal disputes.
These criticisms are usually referring to the use of “restricted reporting orders” under rule 50 of the employment tribunal rules of procedure.
Rule 50 provides that:
(1) A restricted reporting order may be made in the following types of proceedings:
(a) any case which involves allegations of sexual misconduct;
(b) proceedings under the Equality Act in which evidence of a personal nature is likely to be heard [in relation to an individual’s disability].”
The provisions relating to disability are rarely controversial. Attention tends to focus on rule 50(1)(a) relating to “allegations of sexual misconduct”.
The definition of “sexual misconduct” is not contained in the rules themselves, but comes from section 11(6) of the Employment Tribunals Act 1996:
‘sexual misconduct’ means the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex …
Typically restricted reporting orders of this kind will be confined to sex and sexual orientation discrimination cases, but they are not limited to that kind of case. Others may fall within the wording as, for instance, in the case of X v Stevens  IRLR 411 involving an individual who had undergone gender reassignment.
An employment judge can make a temporary or full restricted reporting order of his or her own motion. Any party to the case may apply for a full restricted reporting order. There is provision in rule 50(7) for “any person” to make representations before a full restricted reporting order is made, allowing the press to make their own representations about whether or not the order should be made. In considering whether or not to make a restricted reporting order, tribunals must consider “whether it is in the public interest that the press should be deprived of the right to communicate information to the public if it becomes available” (Staughton LJ in X v Z Ltd  ICR 43).
A restricted reporting order does not turn the employment tribunal hearing into a private hearing. The proceedings are still open to the public and press, who can attend and hear the evidence as normal. The purpose of the restricted reporting order is to prevent publication or reporting of the identity of particular individuals specified in the order.
Contravention of the order is a criminal offence and can lead to a fine of up to £5,000. The restricted reporting order will lapse at the end of the case, once liability and remedy have been decided, so that the press are then free to report the outcome of the case and the identities of the individuals concerned. There is a complication, though. If a case is withdrawn, as it might be if there was a settlement, the restricted reporting order will remain in force indefinitely unless either party applies for it to be revoked (Davidson v Dallas McMillan  IRLR 439).
Beyond restricted reporting orders, there are limited powers for an employment tribunal to hear a case in private, under rule 16 where confidential evidence is used, or under rule 54 where national security is involved. These are rarely invoked.
None of this is has anything to do with super-injunctions, which are a completely different thing.
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