A particularly brutal little tale from the Employment Appeal Tribunal this month about what happens when you are sacked for deceiving your employer, bring an Employment Tribunal claim and then lie to the ET too.
Mr G (not his real name, for reasons which will follow – his real name is Mr Roden, also for reasons which will follow) was dismissed by the BBC after allegations were made about an incident of indecency with young men in Glasgow in 2013. In the course of its investigation the BBC discovered that certain information G had given to it at the time of his recruitment was untrue. Though denying the Glasgow incident, information came to light of his involvement in an event in Cornwall of a not dissimilar nature in 2005. No doubt somewhat to its surprise, the Employment Tribunal was shown a photograph of Mr G on that occasion “simulating oral sex with a student dressed as a children’s television character in the presence of another dressed as a different character”. They may never look at the Teletubbies in the same way again. That incident had led to his summary dismissal from his job in Cornwall, but in his application to the BBC, Mr G had described the parting as being 5 months later than it was, and as by reason of “concern about potential bad publicity arising from allegations [denied by Mr G] made by two students”. Under cross-examination Mr G admitted that he had misled the BBC in that respect. He was dismissed as a result of that dishonesty and no specific finding was therefore made by the Beeb about the truth of the Glasgow allegations.
Mr G claimed unfair dismissal and lost resoundingly, as one might rather expect. However, the key issue for us here is not the merits of his dismissal but of the Order made by the Employment Tribunal that Mr G’s identity should be anonymised throughout the hearing and permanently thereafter, so preventing the meaningful reporting of what was clearly a cracking story. The BBC appealed that Order to the EAT. There the Judge, clearly incensed and not entirely hiding it, was tasked with considering the balance between Mr G’s rights on the one hand and the established public interest in the transparency of judicial proceedings on the other.
Mr G’s case was that the publication of any identifying information about his Employment Tribunal proceedings would leave him unable to rebut a likely public assumption that the Glasgow allegations were true, even though neither the BBC nor the Employment Tribunal had made any finding of guilt in that respect. He feared “vigilante consequences” and the inevitably very damaging impact on his life of being seen as a sexual predator to young men. He gave the public no credit for any ability to distinguish in its reaction between unsupported press contention on the one hand and established fact on the other.
The EAT was unimpressed, noting in response that:-
(i) Mr G had lied to the BBC and then to the ET about his reasons for leaving the Cornwall job;
(ii) he had brought a claim to a public forum (the ET) knowing that to be the case;
(iii) he was not the victim of sexual misconduct but an active participant in it (allegedly in Glasgow and most certainly in Cornwall);
(iv) there was no evidence that the public would be unable to distinguish between an allegation of criminal conduct and a conviction or finding to that effect – indeed, in post-Operation Yewtree days, said the Judge, the public could be said to have become used to famous names being arrested and then acquitted or not proceeded against;
(v) the BBC was entitled to its public vindication, and to prevent Mr G’s identity being disclosed would also prevent it making clear in references or to other potentially interested parties that he had in fact been fairly dismissed for dishonesty.
And so the permanent anonymity Order was overturned. On the facts of Mr G’s case, all of this makes perfect sense. In the only just unwritten subtext of the Judge’s decision, Mr G deserved whatever he got. What would be unwise, however, is for employers to attach too much precedent value to this decision, especially in relation to (ii) above. Where genuine allegations of sexual misconduct are being made, it will not be open to the employer to contest an application for anonymity for the Claimant on the grounds that the employee brought it on him/herself by suing in the first place.
In addition, if it is the employer which seeks the restricted reporting order, it seems that the Employment Tribunal will not accept without clear evidence that public association with alleged conduct of that sort will lead to anything more than temporary embarrassment, to be effectively dispelled if untrue by a reported decision to that effect. Personally I think that this is harsh – 3.9m votes for UKIP show that some parts of the public will believe almost anything, and the reality is that news of the allegations will almost always attract more noise and coverage than a subsequent Tribunal “acquittal” – “Company Behaves Correctly Shock” just doesn’t sell newspapers.