Stigmatisation of sex workers not sufficient to justify an anonymity order (A v Burke and Hare)

When an employment tribunal is considering whether an anonymity order should be made in respect of a sex worker, although the stigmatisation of such workers is a form of reputational damage, that is not sufficient on its own to outweigh the principle of open justice. Therefore, the fact that a judgment would disclose that a party had worked as a stripper and they may be stigmatised as a result, would not be sufficient to justify the making of an anonymity order. Something more, such as a material risk of verbal abuse and/or sexual assault would have to be shown, according to the Employment Appeal Tribunal (EAT).

A v Burke and Hare (EA-2020–SCO–000067–DT)

 What are the practical implications of this judgment?

This decision acts as a reminder that:

• when considering what, if any, order to make under Rule 50, an employment tribunal needs to undertake a balancing exercise, applying a proportionality test, weighing up the justification for interfering with or restricting the right to privacy under Article 8 and the competing right to a fair and public hearing under Article 6 but the default position is that open justice should prevail and judgments should be published in full
• embarrassment and reputational damage are ordinary concomitants of litigation and are not good reasons by themselves for an anonymity order to be made in respect of a claimant
• the stigmatisation of sex workers is a form of reputational damage and therefore insufficient on its own to justify an anonymity order. Something more, such as a material risk of verbal abuse and/or sexual assault would have to be shown
• if someone who works in public in the sex industry has not taken steps to protect their identity, they may be taken to have impliedly waived their Article 8 right to privacy
• in order to obtain an anonymity, order the applicant must produce sufficient evidence to justify such an order being made, for example of:
  • the risk of harm to the applicant (e.g., in the case of a sex worker, of verbal abuse or sexual assault)
  • the risk of harm to the applicant’s career prospects (e.g., whether recruitment agencies routinely search the internet and whether an internet search would have produced the applicant’s name)
  • medical evidence of any relevant physical or mental health impact (including the nature of the condition and the potential causes)
• a claimant’s threat to abandon their claim if an anonymity order is not made is not a good reason to make one and allow the claim to proceed but if the claim is dropped following the rejection of the anonymity application that might assist in justifying an anonymity order being made in respect of the rejection decision

Case details

• Court: Employment Appeal Tribunal
• Judge: Lord Summers
• Date of judgment: 13 October 2021

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