The EAT has made an indefinite anonymity order to protect the identity of a young woman about whom a claimant had made untrue lurid allegations.
THE FACTS
Dr Piepenbrock was employed by the London School of Economics (“LSE”). In the course of claiming that LSE had unfairly dismissed him and subjected him to discrimination and victimisation, he made allegations about a woman known as “Ms D”. He alleged that she had “sexually harassed and exposed herself to her supervisor, the innocent, unsuspecting and happily-married Dr Piepenbrock, during the course of her employment at the LSE.” He accused her of “gross sexual misconduct”, and of lodging a false grievance against him.
Dr Piepenbrock also brought claims in the High Court for personal injury and defamation.
Dr Piepenbrock’s tribunal claims were dismissed by the employment tribunal, which also found that he was not a reliable or credible witness and that the allegations about Ms D (who was not a party to the proceedings) were false and had been made maliciously. Dr Piepenbrock’s approach to individuals who he believed had wronged him was “frequently malicious and actively destructive” and his vilification of Ms D on a public website controlled by him showed his “willingness to destroy her reputation”.
Following an application by LSE, the EAT (considering that it undoubtedly had the jurisdiction to make such an order, although the EAT rules do not expressly provide for this) granted an anonymity order to prevent the disclosure to the public of Ms D’s identity. In considering LSE’s application, the EAT had to balance rights under the European Convention of Human Rights (the “ECHR”). These were: rights under Article 8 (which guarantees the right to respect for private life), the right to a fair trial given by Article 6, and the right to freedom of expression, which is under Article 10 of the ECHR. The EAT also had to give full weight to the fundamental principle of open justice.
Key points considered by the EAT in this balancing exercise were:
- Dr Piepenbrock continued to bear a “very strong animus” against Ms D, which was demonstrated by language used about her in documents submitted to the EAT, in which he referred to her as “the stalker”, and said that she was “clearly a deeply sad, lonely and unhappy person” and a “sociopathic liar”. He was likely to use any document associated with the appeal to attempt to name and shame, vilify and harass her. He was also likely to use the court process, including the EAT judgment and papers, in a way that would abuse the court system.
- Ms D had been traumatised, and would continue to suffer if her identity was published. It was likely that the effect of revealing her identity would be particularly serious in light of her relative youth and vulnerability. The allegations against her were also untrue.
- These factors were relevant to Ms D’s rights under Article 8. They substantially outweighed the principle of open justice, as well as rights to a fair trial and freedom of expression, none of which would be seriously impacted by an anonymization order.
The anonymization order is to remain in force indefinitely, subject to a right to apply to the EAT to revoke or vary it.
WHAT DOES THIS MEAN FOR EMPLOYERS?
We have recently reported on other cases in which the principle of open justice has meant that employers’ have not prevailed in their arguments to keep court documents and information confidential (please see here).
This case shows that, in some circumstances, the principle of open justice will be outweighed by other rights and courts will grant anonymity orders. However, employers should note that the potential effect on Ms D of refusing to grant an anonymity order were unusually severe, and Dr Piepenbrock’s motivation unusually malicious.
Piepenbrock v London School of Economics and Political Science
