Practice and Procedure


PUBLISHED June 24, 2003

Where a transsexual sought anonymity during sex discrimination proceedings, the Employment Tribunal could make a restricted reporting order and a register deletion order as the facts disclosed sexual allegations. Alternatively, Art.6 Equal Treatment Directive allowed the ET and EAT to make an analogous order.Appeal by the appellant ('X') against the decision of the Employment Tribunal ('ET') that it did not have jurisdiction to make a restricted reporting order ('RRO') in relation to X's sex discrimination proceedings. X was a transsexual who had undergone male to female gender reassignment surgery. She applied for a position with the Metropolitan Police. Her application was rejected, according to the police, partly on the basis of a number of serious allegations made against her in the past concerning the commission of criminal offences with sexual elements. X complained of sex discrimination to the ET. She sought anonymity in relation to the proceedings and applied for a RRO and a register deletion order ('RDO'). The ET followed the decision of the Employment Appeal Tribunal ('EAT') in Chief Constable of the West Yorkshire Police v A (2000) IRLR 465 and held that it did not have the jurisdiction to make such orders as the case did not involve an allegation of sexual misconduct or relate to disability as required by r.15(6) and r.16 of sch.1 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. X argued that the ET did have jurisdiction under the Regulations. In the alternative, X claimed that without the protection of a RRO and a RDO, there would be a breach of Art.6 Council Directive 76/207/EEC ('the Equal Treatment Directive') because she did not wish to publicise the fact that she was a transsexual and would therefore be deterred from seeking a remedy for sex discrimination.HELD: (1) The ET could make a RRO under r.16(1) of the Regulations in "any case which involve[d] allegations of sexual misconduct". It had the power to make an RDO by way of r 15(6) of the Regulations in any case which "appear[ed] to involve the commission of a sexual offence". With both orders, the allegation of a "sexual offence" or "sexual misconduct" did not have to appear in the pleadings or even be the cause of the action. The present case fell within the ambit of both orders as it raised issues of a sexual nature. The ET had the jurisdiction to make both an RRO and an RDO. (2) Art.6 of the Equal Treatment Directive applied to emanations of the State such as judicial bodies and public bodies (Biggs v Somerset County Council (1996) IRLR 203; Barber v Staffordshire County Council (1996) IRLR 209 applied), as well as private employers (Coote v Granada Hospitality Ltd (1999) IRLR 656). Therefore, considering Art.6 both the ET and the EAT had the power to make orders analogous to a RRO and a RDO to ensure that an applicant had an effective remedy. Such orders did not need to be limited by the precise terms of the existing ET and EAT rules.Appeal allowed.