Weekly dilemma: Restricted reporting orders

One of my employees is claiming sexual harassment against my company and one of my managers. The allegations are very serious, and, aside from further repercussions for the manager, could seriously damage the company’s reputation. Is there any way I can prevent the press writing about it?

There is nothing that so attracts a person’s attention to something as being told he is not allowed to know about it. This is also the case in the employment tribunal, where the vast majority of cases revolve around tiny factual spats of no interest to anyone except the parties involved, and, occasionally, not even to them. Although the employment tribunal is a public forum, only a tiny fraction of the cases which pass through it receive any press attention at all. Nonetheless, certain claims are obviously more attractive to the press than others, chief among them being sexual harassment. Parties in such cases can face a dreadful public humiliation or embarrassment, or a pillorying in the public eye for something that they may not even have done.

It is for such cases that the tribunals have the power to make restricted reporting orders (RROs). These have the effect of prohibiting the reporting, through publication or broadcast, of the identities of the parties in claims involving allegations of “sexual misconduct”. This is not defined, so how it fits with sexual harassment in the ordinary sense is unclear. It is doubtful that all harassment (especially purely verbal harassment) would be serious enough to count as misconduct for these purposes.

The thinking is that, without RROs, the prospect of unhappy publicity may deter deserving claimants from pursuing their rights or innocent employers from defending them, or be used purely as a negotiation lever or as extra-judicial revenge on the alleged harasser. There are limits, however. Public policy considerations relating to the freedom of the press and the transparency of the justice system dictate that RROs are made only to the minimum extent required to protect the identity of those personally affected. An RRO will not be made merely to protect the reputation of the corporate employer, so unfortunately your company’s name may still be made public even if the identity of the individuals remains under the radar.

Either party to a sexual misconduct claim can apply for an RRO. The more salacious the allegations and the greater the likely press interest, the more likely that the RRO will be granted. However, it is ultimately a matter for the discretion of the employment tribunal, and so a refusal to grant an RRO is very hard to challenge on appeal.

A temporary RRO, lasting 14 days, can be made unilaterally by the tribunal to protect against anticipated short-term press interest. A full or permanent RRO requires the tribunal first to hear representations from both parties. Once the RRO is made, notice of it must be pinned for all to see on the door of the tribunal in question. That does not mean that it becomes a closed hearing, merely that nothing can be reported of it that identifies the individuals concerned until the RRO is lifted or expires in the normal course of events when the tribunal has reached its decision. Breach of an RRO can land the reporter (in the broadest sense) with a fine of up to £5,000.

Depending upon the particular allegations made in your case, your manager may also benefit from the tribunal’s power to omit from the records of any claim involving allegations of sexual offences any details that could allow the public to identify either the claimant or the alleged perpetrator. This is, however, something of a mixed blessing. Although that omission is permanent (it is not lifted at the end of the case like an RRO), this power only applies to “offences”. This means that it will take effect only where the conduct alleged is of a criminal nature, well beyond “ordinary” harassment. If your manager is being accused of conduct in that league, you and he may both have more to worry about than 15 minutes of fame in the Daily Mail.

David Whincup, partner, Squire Sanders Hammonds

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