Anonymity orders, not such a high bar to surmount

In F v J, the EAT held that an employment tribunal erred in refusing to grant the claimant anonymity in his disability discrimination claim in circumstances where he did not want his disability to be made public.

F was employed by J as a university lecturer. In July 2021, while still employed, F brought employment tribunal proceedings making multiple complaints of disability discrimination based on the fact that he has Asperger syndrome, which was accepted as constituting a disability.

In respect of his tribunal proceedings, F was concerned, largely from personal experience, that, were knowledge of his disability to become public, it would have a serious adverse effect on his employability. He therefore indicated that he would not proceed with his claim without anonymity.

The tribunal refused F’s application for anonymity finding that F had provided no reasonable medical / other evidence that his future employability would be harmed if his condition were made public.

F appealed to the EAT arguing that the tribunal had applied the wrong test when considering whether his concerns about future professional harm justified a derogation from the principle of open justice.

The EAT allowed F’s appeal. The tribunal had set too high a bar for F to satisfy the tribunal that it should grant anonymity. It was inherently impossible for F to prove what would happen in the future. Medical and psychological evidence could well demonstrate the extent of F’s disability but could not possibly address the issue whether it carried with it the stigma that F asserted.

What F had to prove was that he had a reasonable foundation for his belief, which is a relatively low evidential threshold. In requiring F to prove objectively that his fears were well grounded, the tribunal was setting the bar too high.

Accordingly, the EAT concluded that F’s concerns were genuinely held and had, at the very least, an objective foundation. The EAT considered that the interference with the principle of open justice was relatively minor, and far outweighed by the genuine and reasonable fears held by F. Accordingly, the EAT concluded that both parties to the proceedings should be anonymised so as to avoid identification.

Link to transcript: https://www.bailii.org/uk/cases/UKEAT/2025/34.html

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Authors

Daniel Hobbs

Call 1998

Related areas

Employment

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