The chance of being named in a public judgment, with the potential for embarrassing details being mentioned or critical findings being made, has always caused parties and witnesses some concern. Now, almost all judgments appear on the internet. Anything which a judge says about a party or a witness may well appear on the first page of a search for their name for the rest of their working life.
When can parties or witnesses be anonymised? Increasingly rarely. The Courts attach great importance to the principle of open justice. In April 2025, the Supreme Court delivered its judgment in Abbasi [2025] UKSC 15, removing anonymity from clinicians who had treated children on life support in hotly contested cases. In PMC v Cwm Taf Morgannwg UHB [2025] EWCA Civ 1126, a case where the anonymity of a child with a very significant brain injury resulting from admitted negligence during his birth was challenged, the Court of Appeal delivered judgment in late August 2025. It reaffirmed that “open justice remains a cardinal principle” but noted that anonymity can sometimes be justified where there are risks to the safety of a party or witness, or of a person suffering commercial ruin. In the highly unusual circumstances of that case, involving an extremely vulnerable and highly disabled person, who had been awarded millions of pounds to cover his care needs, future-facing anonymity was granted despite there having been some publicity about the case in the past.
The Employment Tribunal Rules 2024 provide, at r49, that the Tribunal may make an Order restricting public disclosure of an aspect of proceedings where this is “necessary in the interests of justice” or “in order to protect the Convention rights of any person“. When considering making such an Order, the Tribunal “must give full weight” to “the principle of open justice” and to “the Convention right to freedom of expression“. (Under the old Rules, this was r50. However, while that rule also contained provisions regarding how the ET could hear evidence of information communicated in confidence, those provisions have now been abolished. Issues of confidentiality can still give rise to an application for privacy, but the Tribunal will have to consider it within the framework of r49.)
The two limbs of what is now r49 were considered at length by the Court of Appeal in Clifford v Millicom [2023] EWCA Civ 50. That case involved a company which operated overseas and said some of its witnesses would be under such threat that, if not granted extensive anonymity (to the point of not publishing which country they were in), the company would choose to concede the case. The Court of Appeal noted that the “interests of justice” test was a common law test, with derogations from the principle of open justice potentially justified where there was a threat to life or limb, or for less serious reasons depending on the importance of the evidence which the witnesses might give. The human rights limb must be considered separately, will depend on a balancing between the various rights concerned (always Articles 6, 8, and 10, but potentially others depending on the case), and may give a different result. (Witnesses in non-ECHR countries will not automatically enjoy ECHR rights, but may still benefit from anonymity under the common law interests of justice limb.)
A further issue arises where allegations of sexual misconduct are made. In such cases, the protections of the Sexual Offences (Amendment) Act 1992 may apply, so that it would be a criminal offence to publish matters likely to lead members of the public to identify a named individual as an alleged victim of a sexual offence. That law applies notwithstanding any Order which the Employment Tribunal may make, but its protections should generally be reflected in making Anonymity Orders and Restricted Reporting Orders at a Preliminary Hearing (held in private for obvious reasons).
In many cases, the appropriateness or otherwise of anonymity or restricted reporting will depend on findings of fact which can only be made at trial. For instance, allegations of sexual misconduct might be withdrawn, or explicitly found to be false.
Anonymity, once lost (or effectively given up by not making an application at an early stage), is almost impossible to regain. Litigants should therefore consider, in appropriate cases, making an application to the Employment Tribunal for Orders to “hold the ring” pending trial. Even where such Orders are granted, though, anyone appearing before an Employment Tribunal must be aware of the chance of anonymity being lifted after trial.
For more information on the issues discussed in this article, contact Ross Beaton or call 020 7465 4300
This article featured in our Winter edition of ‘IN CASE’, our Employment newsletter for HR Directors. Click here to read more or subscribe.
