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Privacy v Public Justice - Transgender Claimant Wins Anonymity Order

It is a fundamental feature of any free society that justice must be done in public, but how does that principle sit with the right of individuals not to have sensitive details of their private lives exposed to the public glare? The Employment Appeal Tribunal (EAT) had the difficult task of balancing those factors in a guideline case (X v Y).

The case concerned a transgender claimant who was in part successful in proceedings against his former employer. He did not attend the Employment Tribunal (ET) hearing himself on mental health grounds and was represented by his father. He was named in the ET's published decision, which made reference to his transgender status and sensitive issues relating to his mental health.

Ten days after the publication, the claimant asked the ET to delete those references and to anonymise the decision so that those who read it would not be able to identify him. The ET refused his application but he appealed on the basis that the decision's publication in unredacted and un-anonymised form violated his right to respect for his private and family life, enshrined in Article 8 of the European Convention on Human Rights.

Ruling on the matter, the EAT found that it would be disproportionate to delete from the decision those passages that dealt with the sensitive issues. Anonymisation of the decision was, however, a less drastic means of protecting the claimant's Article 8 rights.

No application for an anonymity order had been made during the hearing but, given the highly personal and sensitive nature of the references, the ET was plainly wrong not to make such an order of its own volition. Had the claimant's retrospective application been properly considered, the only possible outcome would have been an order for anonymisation. The EAT directed that his name be replaced by random initials in the published decision.

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