In F v J, the Employment Appeal Tribunal (EAT) recently ruled that an Employment Tribunal should not have refused a claimant’s application for an anonymity order in his disability discrimination case. The EAT ordered that both parties must be anonymised throughout the proceedings.

The claimant, a university lecturer, has Asperger’s Syndrome, an autism spectrum disorder. He brought a claim of disability discrimination and sought an anonymity order due to his belief that public disclosure of his condition could damage his future employment prospects and cause disruption if he worked in a school environment. It was also relevant that, although he had disclosed his Asperger’s Syndrome to his employer, he had otherwise kept it hidden, including from close family. His application was supported by a detailed witness statement and six academic reports on the impact of disclosing autism in the workplace.

The Employment Tribunal refused the claimant’s application for anonymity, finding that he had provided no reasonable medical or other evidence proving that his future employability would be harmed if his condition was made public. After an appeal and further rejection of his application at a remitted hearing, the claimant again appealed to the EAT, arguing that the Tribunal had applied the wrong test when considering whether his concerns about future professional harm were outweighed by the principle of open justice.

Upholding the claimant’s appeal, the EAT ruled that both parties should be anonymised in the proceedings. The EAT held that the Tribunal had applied an overly high threshold by requiring objective proof of harm and had not properly engaged with the supporting evidence. It was inherently impossible for the claimant to prove what would happen in the future, and medical or psychological evidence could not address the issue of whether his disability carried the stigma that he was asserting. The correct test was whether the claimant had a genuine and reasonable foundation for his belief that disclosure would be damaging. His evidence included details of a live experiment which demonstrated that experienced professionals who stated on a job application that they had autism had a much lower take-up from prospective employers than much less qualified applicants who did not. Finding that the claimant’s fears were genuinely and reasonably held, the EAT also considered that they outweighed a relatively minor interference with the principle of open justice. Even without naming the individuals involved, open justice would still be served through publication of the full facts.

This decision highlights that although anonymity orders are rare, they may be granted where a claimant has a reasonable basis for believing that disclosure of their disability could cause harm and outweighs the fundamental principle of open justice. The EAT’s judgment also illustrates that, depending on the circumstances, this may be a relatively low evidential threshold. However, it is always important for potential claimants to appreciate that their name will appear online in any Tribunal decisions and may be picked up by the press or social media. Prospective employers and recruitment agents may also search the Tribunal judgments database by name.