We report on a case where the Employment Appeal Tribunal needed to balance the human rights of the claimant against the public interest in open justice.
Mr Roden was employed by the BBC as a Development Producer. The BBC received complaints against Mr Roden of a serious sexual nature. During a disciplinary process it transpired that further allegations had been made against him by a previous employer. The BBC met Mr Roden and decided that they would be unable to re-employ him given the seriousness of the allegations against him. Mr Roden’s subsequent claim for unfair dismissal was not successful, despite the fact that he had not had the opportunity to contest the sexual misconduct allegations in a criminal court. The termination had been reasonable and fair, and this was not the issue in this case. The issue was the Tribunal’s order that Mr Roden’s identity be protected in reports of the case. The order was made on the ground that identifying him would lead to a risk that the public would come to the conclusion that he was guilty of the allegations despite their not being proven, leading to devastating consequences for his reputation and career. In cases like these, the Employment Tribunal, under Rule 50 of the Rules of Procedure, is required to consider the European Convention on Human Rights. Three human rights articles are relevant here:
• Article 6, guaranteeing a right to a fair and public hearing, except where publicity would prejudice the interest of justice
• Article 8, providing a right to respect for private and family life, and
• Article 10, giving a right to a freedom of expression.
When weighing up these various rights, the law says that Tribunals must carry out a balancing exercise. This the Employment Tribunal had not done. It had simply assumed that, essentially, the public cannot distinguish between charges that are not proven, and actual misconduct, and given undue weight to Article 8. The Appeal Tribunal held that, in this case, the principle of public, open justice was paramount, that the claimant had chosen to bring the claim in a public forum (conflicting with any claimed Article 8 right to privacy) and that he had provided no evidence to support the assertion that his life would potentially be devastated by revealing his identity. The Appeal Tribunal commented that it was incumbent on a judge, in cases like this, to make it clear that the relevant allegations are unproven and denied and that they would be the subject of future proceedings.
There have been cases in the past that have come to an opposite conclusion; where it has been held that unproven sexual allegations, particularly of paedophilia, would have devastating consequences whether or not they were proved. There has been a lot of water under the bridge since these cases. In this case the Tribunal has reflected the new reality that the public are better able to distinguish between allegations and proven charges. The identification of parties in cases such as these is likely to be more commonplace in future.