04.12.2008

Restricting Reporting Orders

The Employment Appeal Tribunal has, in Tradition Securities & Futures SA v Fariad, held that a restricted reporting order prohibiting the naming of the Claimants in relation to allegations of sexual misconduct can be varied in order to permit naming of those Claimants, notwithstanding that the previous restricted reporting order had been varied so as to permit reporting of the Claimant's other discrimination claims against the alleged perpetrators. In reaching this conclusion, Underhill J stated:-

• an application to vary a restricted reporting order is governed by the principles in Hart v English Heritage (2006), namely a Tribunal should only vary a case management order where there is a material change of circumstance or some other exceptional reasoning justifying reconsideration.

• the Claimants' change of position that they no longer wished to have the protection of the restricted reporting order was sufficient reason to justify reconsideration by the Tribunal.

• in principle, if the naming of the Claimants was likely to lead to identification of the alleged perpetrators by members of the public, it was open to the Tribunal to draft the restricted reporting order so as to prohibit such identification.

• on the facts of the case, it was not established that the identification of the Claimants was likely to identify the alleged perpetrators. Crucially, no identifying detail had been published in relation to the other discrimination claims and would almost certainly not be published in the future because the press would be aware that such publication would in practice lead to the alleged perpetrators' identification in relation to the sexual misconduct allegations.