Former stripper’s anonymity fight clashes with open justice

IT IS A fundamental common law principle of the court system in England and Wales that there should be open justice.

This means that in most court cases:

the public can attend court proceedings; and

those proceedings are freely reportable by the media.

Open justice is about achieving transparency. Courts and judges are open to public scrutiny and the public has visibility on how the justice system works.

It was to help secure open justice that employment tribunal final decisions started to be published online from February 2017. You can search against any name for free and if that person or company has been involved in a final hearing at employment tribunal since February 2017 the decision will be published.

It is, however, possible for the tribunal, either on its own initiative or on application by one of the parties, to make an order to prevent or restrict the public disclosure of any employment tribunal proceedings.

The tribunal will do this if it considers it necessary in the interests of justice or to protect a party’s rights under the European Convention on Human Rights (ECHR) such as the right to a fair trial under Article 6 or the right to privacy under Article 8. Before making such an order the tribunal must give full weight to the principle of open justice and the potentially conflicting ECHR right.

In the case of A v Burke and Hare, decided last month, the Employment Appeal Tribunal refused to grant an anonymity order to a former stripper who had brought a claim for unpaid holiday pay of £1,846.56 against her former employer, a strip and lap dancing bar in Edinburgh.

A had worked for Burke and Hare as a stripper while a student in Edinburgh. She had previously worked as a stripper at Stringfellows. She was not paid by Burke and Hare but paid directly by the clients for whom she undertook “private dances”, during which she would strip naked and mimic sexual acts. She had now returned to live in London, no longer worked as a stripper and wished to pursue a career in finance or IT. She argued that she would be at risk of stigmatisation and sexual violence if a decision was published identifying her and her former work as a stripper.

At first instance, before the Employment Tribunal the application for an anonymity order was refused and A appealed to the Employment Appeal Tribunal (EAT). The EAT granted her an interim anonymity order pending the outcome of the appeal.

A argued in her appeal that strippers and other sex industry workers are stigmatised by society and that her right to privacy included protecting her honour and reputation which would be damaged by a judgment that identified her.

She also argued that she wished to leave her life as a stripper behind her and if an internet search revealed she had worked as a stripper her career prospects would suffer. If she was not granted anonymity she would have to withdraw her claim and so if open justice was given greater weight than her right to privacy she would be deprived access to justice.

The EAT refused her appeal. Her argument of stigmatisation – her honour and reputation – was not enough by itself to trump the principle of open justice. The risk of embarrassment and reputational damage is part of the process of litigation.

However, the EAT noted that stigmatisation may lead to other harms. A had said in her witness statement that she had suffered verbal abuse while working as a stripper, being called a “slut and a whore”, and having to conceal her identity at work and wearing baggy clothing when leaving. Had she been at continuing risk of this verbal abuse and sexual assault the EAT said its considerations might have been different.

However, A had not appealed the Employment Tribunal judge’s conclusion that there was insufficient evidence that she had suffered such harm. A derogation from the principle of open justice meant there had to be clear and cogent evidence of the harm that would be done. No explanation had been given as to how the risk of harm would materialise in her case and the judge found there was little risk of her past becoming known or of those who discovered she had been a stripper causing her harm, even though she argued she had a distinctive name. The EAT was unwilling to assume that a search against her name would take a user to a judgment on the database and there was no evidence before the court that employers or recruitment agencies used the online register of tribunal decisions when scrutinising job applications.

Although I agree that open justice is vital for our justice system, this decision does strike me as harsh. I think many women would agree that it being known you worked as a stripper in another life could lead to negative or abusive attitudes towards you.

The register of tribunal judgements is easy and free to search and social media means publicly available information can, if anyone is so minded, be published with just a few keyboard strokes. The judge didn’t stipulate what clear and cogent evidence of harm might have tipped the balance in favour of anonymity but I can’t help thinking that the sort of legal budget that can secure super injunctions for wealthy celebrities could probably have come up with something.