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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McMillan & Anor v. B & Anor [2008] UKEAT 0006_07_0801 (8 January 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0006_07_0801.html Cite as: [2008] UKEAT 0006_07_0801, [2008] UKEAT 6_7_801 |
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At the Tribunal | |
Before
THE HONOURABLE LADY SMITH
MISS J GASKELL
MISS A HIBBERD
(2) A |
APPELLANTS |
(2) MS F DAVIDSON |
RESPONDENTS |
Transcript of Proceedings
JUDGMENT
For the Appellants | MR S MILLER (Solicitor) Messrs MacRoberts Solicitors 152 Bath Street Glasgow G2 4TB |
For the Second Respondent | MR C BOURNE (of Counsel) Instructed by: Messrs Thompsons Solicitors Berkeley House 285 Bath Street Glasgow G2 4HQ |
For the First Respondent | No appearance or representation by or on behalf of the First Respondent. |
Practice and Procedure: Restricted reporting order
Freelance journalist sought revocation of a restricted reporting order where Claimant withdrew claim in the course of hearing. The Tribunal found that she had a locus to be heard, that they had jurisdiction to entertain the application notwithstanding the withdrawal of the claim and that it was appropriate to revoke the order. On appeal, the Employment Tribunal quashed the Tribunal's decision. The journalist had no right to be heard before the Tribunal. Further, the claim having been withdrawn against the only Respondents and there being no other parties to the case, the Tribunal was functus; it had had no jurisdiction to pronounce an order revoking the restricted reporting order.
THE HONOURABLE LADY SMITH
Background
"23rd June 2006
Can I ask that in view of the withdrawal of the claim number S/106284/2005 the restricted reporting order be revoked or a written judgment issued on the proceedings.
Fiona Davidson (Sgd)
Freelance Journalist."
"….We have decided that, if Ms Davidson wishes to proceed with the application, she must make a formal application which should be intimated to both parties in order to allow them time to consider their position and intimate whether they wish to oppose it. If any such application is opposed, a date for hearing will be fixed. Any application by Ms Davidson must be made within 14 days of the date upon which this note is served on her."
"In the first place, we have not heard all the evidence, and, in the second, whatever right the press may have to intervene in connection with questions surrounding the issue of restricted reporting orders, we are satisfied that they have no right to request a written judgment. In the third place, there is nothing to judge."
"It is the judgment of the Tribunal that the restricted reporting order pronounced in this case on 8 May 2006 remain in force for 28 days after the date of this judgment but that it then be revoked."
The Tribunal's Judgment
"There is a power possessed by an industrial tribunal to revoke an RRO at any time if it thinks fit: see the 1993 Regulations, rule 14(4). It would be open to a newspaper or other media organisation to apply to be joined as a party to the proceedings before the industrial tribunal for the purpose of making an application for the revocation of an RRO, and to make such an application."
"Withdrawal takes effect on the date on which the Employment Tribunal Office (in the case of written notifications) or the tribunal (in the case of oral notification) receives notice of it and where the whole claim is withdrawn (subject to paragraph (4)), proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs."
and decided it was possible to:
"13. …..interpret Rule 25(3) in a manner that would allow us to revoke the RRO."
notwithstanding an argument presented by the Respondents to the effect that the claim having been withdrawn, they were functus and could not issue any further orders in the case. They did so on the basis that they required to view the language of the rule as "elastic" so as to enable them to do what was required by the European Convention on Human Rights ("the convention"). They appear to have taken the view that there was a conflict between rule 25 and rule 50 and that they were required, by section 3(1) of the Human Rights Act 1998, to resolve that conflict in favour of the press.
"We are satisfied that it is appropriate to revoke the restricted reporting order. We start from the basic premise that anything said or done in a Scottish court or Tribunal should be capable of being reported by the press and that any exception to the foregoing rule has to be for a clearly defined purpose and in exceptional circumstances. In our opinion, there is nothing exceptional or special about the circumstances of this case. The fact that one or more of the parties may find the content of any report embarrassing though unfortunate, does not render the case exceptional or special and we are satisfied that a restricted reporting order should be lifted."
Relevant Law
"(b) for cases involving allegations of sexual misconduct, enabling an industrial tribunal, on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect ( if not revoked earlier) until the promulgation of the decision of
the tribunal."
"Restricted reporting order" is defined in section 11(6) as being one having the effect of:
" …..prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain."
and "identifying matter" in relation to a person whose identity is the subject of an RRO is defined in same subsection as
"…..any matter likely to lead members of the public to identify him as a person affected by, or as the person making the allegation……."
"In conclusion, I hope that all noble Lords will agree with me that the new clauses offer valuable protection to the victims of and witnesses to sexual harassment and indeed to anyone who is falsely accused of such harassment. The Government strongly condemn sexual harassment and hope that these new powers will make the process of bringing an industrial tribunal complaint involving such allegations less distressing, thereby encouraging those who would previously have been deterred from bringing such cases to do so." (per Viscount Ullswater).
" …the purpose of these provisions was to enable complaints of sexual harassment at work to be brought and witnesses to give evidence about incidents of sexual harassment without being deterred by fear of intimate sexual details being publicised." (paragraph 36)
Temporary RRO's
Full RRO's
"that the applicant has a legitimate interest in whether or not the order is made"
then it must allow such representations to be made before any full RRO is issued (rule 50(7)):
"Any person may make an application to the chairman or tribunal to have a right to make representations before a full restricted reporting order is made. The chairman or tribunal shall allow such representations to be made where he or it considers that the applicant has a legitimate interest in whether or not the order is made."
"A tribunal or chairman may revoke a restricted reporting order at any time."
"a full order shall remain in force until both liability and remedy have been determined in the proceedings unless it is revoked earlier;"
"For the purposes of this rule liability and remedy are determined in the proceedings on the date recorded as being the date on which the judgment disposing of the claim was sent to the parties …….." .
"25(1) A claimant may withdraw all or part of his claim at any time – this may be done either orally or in writing in accordance with paragraph (2).
…
(3) The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the Employment Tribunal Office (in the case of written notifications) or the tribunal (in the case of oral notifications) receives notice of it and where the whole claim is withdrawn, subject to paragraph (4) proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs.
(4) Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed … If the respondent's application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant ……"
"…directed at no more than providing that the "end" to which paragraph (3) brings the withdrawn proceedings is not so terminal as to preclude the making by the respondent of a dismissal application;"
and, similarly, it seems clear that the reservation at the end of subparagraph (3) is directed at no more than providing that the "end" to which the proceedings are brought on withdrawal is not so terminal as to preclude the tribunal hearing and determining any applications for costs, preparation time or wasted costs.
"(k) that any person who the chairman or tribunal considers may be liable for the remedy claimed should be made a respondent in the proceedings;
…
(r) that any person who the chairman or tribunal considers has an interest in the outcome of the proceedings may be joined as a party to the proceedings;"
"17(1) A tribunal may at any time, on the application of any person made by notice to the Secretary or of its motion, direct any person against whom any relief is sought to be sisted as a party, and give such consequential directions as it considers necessary."
"At any stage of the proceedings a party may apply for an order to be issued, varied or revoked……"
and those in rule 28 to which Mr Bourne referred. They empower chairmen or tribunals to issue:
"(a) a 'judgment' which is a final determination of the proceedings or of a particular issue in those proceedings ; it may include an award of compensation, a declaration or recommendation and it may also include orders for costs, preparation time or wasted costs."
The Appeal
"to protect anonymity whilst evidence is being heard".
Discussion and Decision
"….we are satisfied that the word proceedings refers to the action between the parties or steps in the action between the parties. In our opinion, a restricted reporting order is not part of that action but "stands outside" that action. The making or revocation or such an order is essentially ancillary to the proceedings between the parties and – we are satisfied – the current application to revoke is not part of the proceedings contemplated by the said Rule."
Disposal