Ameyaw v Pricewaterhousecoopers Services Ltd, Court of Appeal - United Kingdom Employment Appeal Tribunal, January 04, 2019,  UKEAT 0244_18_0401
|Resolution Date:||January 04, 2019|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Ameyaw v Pricewaterhousecoopers Services Ltd|
Appeal No. UKEAT/0244/18/LA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 20 December 2018
Judgment handed down on 4 January 2019
HER HONOUR JUDGE EADY QC
MISS Y AMEYAW APPELLANT
PRICEWATERHOUSECOOPERS SERVICES LTD RESPONDENT
Transcript of Proceedings
|For the Appellant |MISS YVONNE AMEYAW |
| |(The Appellant in Person) |
|For the Respondent |MS CLAIRE DARWIN |
| |(of Counsel) |
| |Instructed by: |
| |Pricewaterhousecoopers LLP |
| |1 Embankment Place |
| |London |
| |WC2N 6DX |
| | |
PRACTICE AND PROCEDURE - Restricted reporting order
PRACTICE AND PROCEDURE - Case management
Practice and Procedure - Case Management - Restricted Reporting Order/Anonymity - Rule 50 ET Rules 2013
The Appellant applied for an earlier ET Judgment in the proceedings (sent out to the parties and entered in the public Register over a year before) to be removed from the Register as she objected to the fact that it was publicly accessible on-line; alternatively, she asked for an Anonymity Order to be made under Rule 50 of the ET Rules. The ET refused both applications, holding that it had no power to remove a Judgment from the Register and that Rule 50 provided no basis in the present case to overrule the principle of open justice. The Appellant appealed.
Held: dismissing the appeal
The ET had correctly held that it had no power to exclude or remove a Judgment from the public Register. By Rule 67 of the ET Rules, it was required that, subject to Rules 50 and 94, every Judgment and document containing Written Reasons for a Judgment was entered on to the public Register. Although the ET could decide not to enter Written Reasons for a Judgment in a national security case (Rule 94), there was no corresponding power under Rule 50.
The real issue raised by the appeal was whether the ET had properly exercised its discretion in refusing to make an Anonymity Order under Rule 50. The Appellant had contended that such an Order was necessary to protect her Article 8 ECHR rights. Her application related, however, to a Judgment reached after an open Preliminary Hearing at which the ET had considered an application to strike out the Appellant’s claims on the basis of her conduct at an earlier (closed) Preliminary Hearing. The matters to which the Appellant objected had, therefore, been the subject of discussion at a public trial of the strike out application; Article 8 was not engaged - the Appellant could have had no expectation of privacy in that regard.
Even if that was wrong, it was for the ET to carry out the requisite balancing exercise (see Fallows and Others v News Group Newspapers Ltd  ICR 801 EAT) and, in the particular circumstances of this case, it had been entitled to take the view that the principles of open justice and the interests arising from Articles 6 (fair trial) and 10 (freedom of expression) were not outweighed by the Appellant’s interests under Article 8 ECHR such that there should be any restriction on publicity under Rule 50.
In reaching its decision, as an exercise of its case management discretion, the ET had been entitled to decline to consider unsigned manuscript notes from the closed ET hearing. As for the adequacy of the reasons provided for its decision, these were proportionate to the significance of the issue to be determined: the parties were not strangers to the background to that decision and the ET had made clear (i) its view that it had no power to exclude the Judgment from the public Register, and (ii) its conclusion on the question whether the principle of open justice should be curtailed in this case.
HER HONOUR JUDGE EADY QC
This is the expedited hearing of an appeal against a decision of the London South Employment Tribunal (“the ET”), refusing applications (1) to remove an earlier Judgment in these proceedings from the public Register; (2) to make a permanent Anonymity Order.
In giving this Judgment, I refer to the parties as the Claimant and Respondent, as below. This is the Claimant’s appeal against the decision of Regional Employment Judge Hildebrand of 2 July 2018. The appeal was permitted to proceed on amended grounds after an Appellant-only Preliminary Hearing before Slade J on 5 December 2018. Given that there was a further ET hearing in this matter listed for January 2019, it was directed that the hearing of this appeal should be expedited. The Claimant has complained this has put her at a disadvantage: the counsel who represented her at the Preliminary Hearing (under the Employment Law Appeal Advice Scheme) was not available to act for her on the day listed for the appeal and she also had to prepare for another hearing before the ET (initially listed for the same time as the current appeal hearing but since moved to the afternoon). Given her complaints about the listing of the appeal, the Claimant applied for an adjournment of the hearing, but this was refused - initially by the EAT Registrar and then, on appeal, by Order of HHJ Auerbach - for reasons that have been separately provided. Considering that she was prejudiced by the refusal to adjourn the hearing, the Claimant then applied for an extension of time to lodge her skeleton argument, which was allowed, albeit not for the full period requested. Slightly after the extended time, the Claimant lodged “Draft Notes” for this hearing (comprising some 85 paragraphs), explaining that she had not been able to draft a full skeleton argument in the time available. I have, in any event, treated those notes as the Claimant’s skeleton argument for the purposes of this hearing.
At the outset of the oral hearing of the appeal, the Claimant told me she did not feel she had been able to properly prepare such that she was able to address me on her grounds of appeal. I confirmed I had read her notes for this hearing and said I would, in any event, give the Claimant the opportunity to respond to any points made by the Respondent or to otherwise address me on any points she wished me to take into account. Although the Claimant chose not to make any further oral submissions in advance of the Respondent’s submissions, she did raise points during the course of the hearing and took the opportunity to respond to certain aspects of the Respondent’s case.
Subsequently, the Claimant has emailed me further, providing additional submissions in support of her points of reply to the Respondent.
The Claimant, who was previously employed by the Respondent as a Senior Manager (having started that employment in April 2014), has brought four ET claims against the Respondent. The proceedings relating to those claims have had a long and complex history and I have sought to extricate only that which is necessary for present purposes.
The first hearing to which I need to refer occurred on 31 January 2017, before Employment Judge Hall-Smith. This had been listed as a closed Preliminary Hearing and both parties attended, represented by counsel (the Claimant by Mr Milsom; the Respondent by Ms Bell). The Claimant was present, accompanied by two other people (one of whom was her mother) and it seems that there was a discussion at the outset regarding the nature of the hearing (‘closed’ or ‘open’) and whether it was appropriate for persons other than the parties and their representatives to be present. The Respondent contends that, during the course of the hearing, the ET effectively went into open session and it is observed that, although the ET’s directions were sent out on 21 February 2017 in the normal form of an Order made at a closed Preliminary Hearing, the Written Reasons provided for the ET’s directions made clear that this had in fact been an “Open Preliminary Hearing”. The Claimant strongly disagrees with that suggestion and points to references within notes taken by representatives of the Respondent at the hearing to this being a “closed hearing”. EJ Hall-Smith has since retired and it is not practical to seek to obtain further clarification from him in this regard. For current purposes I am prepared to proceed on the basis that the hearing on 31 January 2017 was a closed Preliminary Hearing.
In any event, during the course of the hearing before EJ Hall-Smith, Mr Milsom withdrew, having ceased to act for the Claimant. Both before Mr Milsom’s departure and thereafter it is apparent that EJ Hall-Smith considered the Claimant and her mother behaved in a way that was disruptive of the proceedings. The Claimant takes issue with EJ Hall-Smith’s record in this regard (set out in his “Reasons for the Tribunal Order of 31 January 2017”, sent to the parties on 3 March 2017) and objects that she never had the opportunity to comment on the observations...
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