People who have hidden disabilities may not wish them to become publicly known – but can such anxieties justify the making of anonymity orders in employment proceedings? The Employment Appeal Tribunal (EAT) considered that question in a guideline ruling.
The case concerned an academic who, it was not disputed, had a disability in the form of autism spectrum disorder (ASD). He lodged Employment Tribunal (ET) proceedings against his university employer in which he made multiple claims of disability discrimination, all of which were denied. At the outset of the hearing of his case, he applied for an anonymity order so that he would not be identified in the proceedings.
He said that his hidden disability was not obvious to people with whom he came into contact. He had generally chosen not to reveal its existence to employers, save in the case of the university when he became obliged to do so. He was concerned that the revelation of his disability in the public forum of an ET would destroy his future employment prospects. Although his disability would have to be discussed during the case, he argued that there was no public interest in his name being placed into the public domain. The university, however, objected to his application.
Refusing to grant him anonymity, the ET ruled that his human right to respect for his privacy, enshrined in Article 8 of the European Convention on Human Rights, was outweighed by the extremely important open justice principle. By issuing his claim, he had chosen to air his grievances in a public forum. Noting his reluctance to inform future employers of his disability, the ET did not consider that Article 8 rights encompass a right to be less than candid.
In upholding his appeal against that decision, the EAT found that the ET was wrong to assume that, by issuing his claim, he caused the subject matter of his disability to pass irrevocably into the public domain. It noted that many preliminary hearings in the ET take place in private. Even where sensitive matters have already been aired in a public hearing to some degree, it did not follow that an anonymity order would be of no utility and could not be granted.
The onus fell upon him to establish that an anonymity order was justified, yet fairness demanded that he should have been given an opportunity to present evidence in support of his application. In the absence of such evidence, it was not fair to draw an inference that he was intent on being less than candid with future employers. His application was remitted to a different ET for fresh consideration.