although the rules governing procedure of industrial tribunals (in Northern Ireland) do not give power to order that an entry in the tribunal register be deleted, European Law has the effect that the rules must be construed to mean that such power does exist if it is necessary to omit from the register or to delete from it any material likely to lead to members of the public identifying a male to female trans-sexual claimant who is bringing a discrimination case arising from her change of sex.

For relevant general notes go to Procedure of Employment Tribunals/2004 rules/rule 50 - restricted reporting orders .

Outline Facts:-

The appellant, known as JR5, was a male to female trans-sexual who was an official in the Northern Ireland Department of Agriculture and Rural Development. When she brought claims of discrimination against her employers (under the Sex Discrimination Order (NI) 1976, as amended by the Sex Discrimination (Gender Reassignment) Regulations Northern Ireland 1999 No 311) she did not want the hearing held in public. She applied for a restricted reporting order, a register deletion order and an order resticting attendance at the hearing.

JR5 said she was not prepared to proceed with her claim without protection from publicity as she was fearful that it could lead to intimidation and physical attacks on her and her home.

The NI Equality Commission referred the matter to the Vice-President of the Industrial Tribunals (this is Northern Ireland, hence the unusual nomenclature). The Vice-President concluded that the tribunal did not have power to delete names from the public register.

JR5 appealed to the Court of Appeal.

Decision

JR5 won.

The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, SI 2005/150 reg 13 requires the Secretary of the Office of the Tribunals to maintain a register containing details of all claims and appeals and the fact of applications together with a copy of all decisions and rulings. There is no express provision to have the register anonymised save where article 13 of the Order has given specific power to prevent identification in cases involving allegations of sexual offences.

Schedule 1 to the Regulations contains the Industrial Tribunal rules of Procedure. Rule 49 allows for omission and deletion from the register of any matters which is likely to lead members of the public to identify any person affected by or making such an allegation. Rule 59 is a general provision which gives a tribunal or chairman, subject to the provision in the rules and any practice directions, power to regulate its or his own procedure. In this context "procedure" has been held to be the mode of proceeding by which a legal right is enforced.

Article 6(1) of the EC Equal Treatment Directive 2002/73 (amending Directive 76/207/EEC) provides that:

"Member States shall ensure that judicial and/or administrative procedures ...., for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them....."

The Court of Appeal noted that

"Given their literal meaning and read in isolation the regulations and rules do not give an industrial tribunal or chairman power to order that an entry in the register be deleted. The secretary is required by rule 32, subject to rule 49, to enter certain documents in the register. Rule 49 which is the only rule dealing with omission and deletion from the register, is in mandatory terms and is confined to proceedings involving allegations of the commission of sexual offences. Although rule 59 gives a tribunal or chairman a wide discretionary power to regulate procedure this power is subject to the provisions of the rules"

However, notwithstanding the literal meaning, the Court of Appeal ruled that:

"If it is established by the evidence that the appellant will be unable to enforce an obligation because of the risk to her physical safety, unless the procedure can afford her sufficient protection as to allow her to do so, the obligation under the Directive will not be met. In our view, without any distortion to its meaning, rule 59 can be read so as to permit a tribunal to make an order that is in such terms as may be necessary to omit from the register or to delete from it any material likely to lead any member of the public to identify her as the claimant".