Employment Appeal Tribunal Acknowledges Error in Restricted Reporting Order Case
An Employment Appeal Tribunal review has acknowledged a failure to consider key arguments regarding freedom of expression and public interest in a Restricted Reporting Order case.
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The Employment Appeal Tribunal (EAT) has reviewed a decision concerning a Restricted Reporting Order (RRO), admitting a failure to fully consider the appellant's arguments on freedom of expression and public interest. The review application stemmed from an earlier EAT judgment that dismissed appeals against decisions refusing to set aside or vary an RRO.
Tribunal Acknowledges Oversight
His Honour Judge James Tayler accepted that he had mistakenly failed to consider two material changes in circumstances put forward by the claimant: a "heightened need for freedom of expression" and "greater evidence of public interest." In his review judgment, the judge stated, "I accept that I was mistaken in so doing and that I overlooked the claimant’s assertion that there were further material changes in circumstances that he relied on..." He apologised for this oversight, noting the complexity of the material presented by the claimant.
Context of the Restricted Reporting Order
The case involved an application to vary or set aside a permanent RRO. The claimant argued that for the RRO to be varied or set aside, a material change in circumstances was necessary. While the initial assessment focused on a reduction in risk to the respondents, the review highlighted that the claimant had also consistently argued for the consideration of heightened freedom of expression and increased public interest. These arguments were advanced in various stages, including submissions to the Employment Tribunal and skeleton arguments for preliminary hearings.
Interests of Justice
Rule 33 of the Employment Appeal Tribunal Rules 1993 allows for the review of orders if the interests of justice require it. The EAT determined that this case warranted a review, not as an opportunity to re-argue the case, but to address the specific elements of Ground 2 that had not been determined in the previous judgment. The judge emphasised that failure to refer to every subsidiary argument in a judgment does not usually warrant review, but this instance involved substantive points that were subject to argument.
Remittal to Employment Tribunal
Consequently, the EAT has varied its previous order to allow Ground 2 concerning heightened freedom of expression and greater evidence of public interest. The application to vary or revoke the RRO has been remitted to the Employment Tribunal for determination. Given the complexities and delays, the EAT suggested that the matter be heard by a differently constituted Employment Tribunal to ensure the claimant has faith in the process.
Read the entire judgment here: A v (1) B, the Organisation (2) C (3) D EAT 35
