“We want to strip off our clothes, not our rights”: A v Burke and Hare – by Danielle Worden

Image from Mina Karenina, United Sex Workers

Note: this post was written by the Appellant’s union representative with the Appellant’s consent and editorial approval. It therefore contains insights known to those directly involved in the case.  

1. Introduction

In October 2021, the Edinburgh Employment Appeal Tribunal (“EAT”) gave judgment in A v Burke and Hare EA-2020-SCO-000067-DT, in which it refused anonymity to a former stripper. The Appellant, called A within the judgment, was allowed to keep her name private solely in respect of the anonymity proceedings. This meant she could only continue with her claim against her former workplace, which was for £1,846.56 in holiday pay, if she was named in the claim and any substantive judgments as a former stripper. A consequently withdrew her claim due to the potential repercussions of being exposed as a former stripper. The presiding judge, Lord Summers, accepted this would be the outcome of the decision, but nonetheless refused anonymity ([30]).

This was a flawed judgment that sets a worrying precedent, binding on Employment Tribunals. The EAT did not apply the correct test for deciding the application, whereby A’s rights (Article 8 of the European Convention of Human Rights (“ECHR”) on the right to private life and the right to access to justice) should have been carefully balanced against the principle of open justice. Instead, it minimised the risks being “outed” as a former stripper would have created, placing undue emphasis on the need to name parties to promote open justice. The judgment is a concerning development in a climate where strippers are facing extreme hostility and threats to their livelihoods from anti-strip club campaigners. However, it illustrates the importance of United Sex Workers, a trade union for sex workers, in assisting strippers and other sex workers in asserting their rights. 

2. Background

Sex workers in England, Wales, and Scotland operate in a highly criminalised environment. The sale and purchase of sex by consenting adults is legal. However, almost all related activities (such as working together via laws against ‘brothel-keeping’) are criminalised, which pushes sex work underground, makes it more dangerous, and denies workers legal recourse. Northern Ireland takes an even more oppressive approach by criminalising the purchase of sex.

The law also affords insufficient protection to sex worker labour rights. For tax and immigration law purposes, sex work is legitimate work. Sex workers typically register as self-employed with HMRC and can list their profession as a sex worker, and pay for working insurance, self-employment taxes, and National Insurance contributions. They may recover work-related expenses, and some were entitled to a grant through the COVID-19 Self-Employment Income Support Scheme. Sex work also is legally recognised as work under immigration law: engaging in sex work without the right to work is a deportable offence. However, sex work generally is not treated as work for labour law purposes and the doctrine of illegality likely prevents sex workers from accessing labour rights protection.

The one exception is stripping, with it being legal to work in a strip club licensed generally under the Licensing Act 2003, or more specifically as a Sexual Entertainment Venue (“SEV”) under the Policing and Crime Act 2009. Although SEVs typically classify their dancers as self-employed, many dancers report being significantly controlled by management. This indicates ‘worker status’ and ‘false self-employment’, a practice used to deny a workforce labour rights that also permeates the gig economy as shown by Uber. Assisted by United Sex Workers, strippers are consequently issuing claims contingent on showing worker status. This was achieved in Nowak (previously discussed by Cruz for this blog) and was sought by A in her case.

3. Anonymity and sex work

Due to risks associated with being ‘outed’, sex workers will often need anonymity when issuing legal proceedings. Anonymity is difficult to secure in non-criminal law proceedings and the test varies depending on the type of claim. In September 2021, United Sex Workers assisted a Claimant in obtaining anonymity in the first Equality Act 2010 challenge brought by a sex worker, alleging indirect gender discrimination. In a series of earlier cases, anonymity was granted to Applicants seeking judicial review of rules requiring disclosure of sex work-related convictions to certain employers. However, in 2019 anonymity was refused to strippers attempting to bring data protection proceedings against anti-SEV campaigners who had covertly filmed them working.

A sought anonymity due to the impact being outed would have on her rights. Despite being legal, she argued that stripping remains highly stigmatised and that being named would negatively affect her “honour and reputation”, protected by Article 8. Having stripped temporarily to fund her degree before pursuing a career in finance, she highlighted that her name was uncommon and so the judgment would easily be located by prospective employers. A kept her stripping secret from most of her friends and family and took several measures, such as using pseudonyms at work, to prevent her identity being exposed. She also argued that her mental health would suffer from the stress of being outed, and that she would risk verbal and physical violence. Finally, she claimed refusing her anonymity would deny her access to justice as she would withdraw her claim.

The starting point in Employment Tribunal claims is that the parties’ names are made public. Since 2017, Tribunal judgments are also published online meaning that a Google search of a party’s name may easily lead to the judgment. Furthermore, the public can attend substantive hearings and access witness statements. Upcoming Tribunal hearings are also published under the parties’ names on a weekly cause list. These rules reflect the principle of open justice and Article 10 of the ECHR.

Anonymity orders and/or reporting restrictions are allowed in extremely limited circumstances per Rule 50 of the Employment Tribunal Rules of Procedure 2013 (“ET Rules”). Under Rule 50(1), the Tribunal may grant anonymity if “necessary” to protect (i) “the interests of justice” or (ii) ECHR rights. When making this assessment, under Rule 50(2) the Tribunal must also “give full weight” to two considerations: (i) the open justice principle and (ii) Article 10 rights. The necessity of anonymity must be supported by “clear and cogent evidence”. A argued that being outed simply for attempting to assert her employment rights would interfere with Article 8 and prevent access to justice.

4. A v Burke and Hare

At the initial preliminary hearing in 2020, the anonymity application was refused by the Employment Judge (“EJ”). The EJ held that A had provided insufficient evidence of the potential harm risked, and subsequently refused to reconsider his decision. A appealed on three grounds ([28-39])

1. The judge failed to account for relevant matters, such as A’s “honour and reputation” as protected by Article 8
2. The judge accounted for irrelevant matters by placing weight on the fact that the Appellant had chosen to work as a stripper; and
3. The judgment was perverse.

The appeal was refused by the EAT on all grounds. Below I examine the issues with its treatment of grounds (i) and (ii), with ground (iii) attracting minimal analysis in the judgment.

i. Failure to apply the relevant test

Article 8

A argued that the EJ failed to properly account for Article 8, with his judgment making no reference to Article 8. He did not consider how being outed would interfere with her employment prospects or her “honour and reputation”. It is concrete law that “honour and reputation” are protected by Article 8. Following the European Court of Human Rights, this has been confirmed by, for instance, the EAT in A v B and Supreme Court in Guardian News. A alleged that the EJ did not engage with her evidence regarding the likely impact on Article 8, such as GP records attesting to a history of depression and anxiety, and a statement from Dr Gemma Ahearne, an academic specialising in sex worker rights. A also highlighted the little opportunity she had to provide evidence, with the initial decision being unexpectedly made at a telephone hearing without the EJ seeing the full papers.

Nonetheless, the EAT found that ‘the EJ’s failure to refer to article 8 or the Claimant’s ‘honour and dignity’ did not justify allowing the appeal. It is extremely difficult to see how the EJ’s reference to A’s arguments relating to the stigma attached to stripping ([46]) equates to sufficient consideration of whether anonymity was “necessary” to protect Article 8, required by Rule 50(2). The EAT defends this stating:

…. social opprobrium is not regarded as sufficient to justify an anonymity order. It would appear to me that stigmatisation is a form of reputational damage and is not sufficient to outweigh the principle of open justice.

There is simply no authority for the proposition that a risk of stigma or reputational harm cannot justify granting anonymity. The EAT claims it was not referred to any cases discussing “honour and reputation”, yet the judgment cites Guardian News and A’s Counsel cited cases such as A v B in her skeleton.

Rather than accounting for relevant, binding cases, the EAT refers to cases such as Kaim Todner as apparent authority for the proposition that “stigmatisation is an insufficient basis for anonymity” ([46]). This case did not concern Article 8 (pre-dating the Human Rights Act 1998), involved judicial review where the test for anonymity is different, and concerned the reputation of a law firm rather than an individual. The judgment also cites Roden, in which the EAT refused anonymity to a journalist dismissed after being accused of sexual misconduct. However, the EAT in Roden found it was “not a disputed legal principle” that the “risk of reputational damage” was protected by Article 8 ([19]; [51]). Rather, anonymity was refused due to a complete lack of evidence that Article 8 was threatened. Not only does this show that preventing reputational harm can be a basis for anonymity, it also demonstrates the comparable strength of A’s case given the evidence of risk provided.

Indeed, the EAT placed insufficient weight on A’s evidence, finding that there was “extremely thin” evidence of a risk of harm [54]. Although “clear and cogent” evidence is required, the Tribunals were bound to consider if A had adduced evidence showing a risk of harm on the balance of probabilities. Per Justice Denning (as he then was) in Miller [374A-B], evidence:

…must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “we think it more probable than not”, the burden is discharged, but if the probabilities are equal, it is not.

The Tribunals applied a much higher evidential standard than required. No account was given to the point that A had little chance to provide evidence, yet adduced her witness statement, GP records, and Dr Ahearne’s statement. Furthermore, both Tribunals accepted as fact the physical threats and verbal abuse received from prior customers ([22]). The Respondent did not provide any evidence countering A’s evidence and did not appear at the EAT hearing.

In particular, unsatisfactory consideration was given to Dr Ahearne’s statement, which explored the different risks attached to being outed citing both quantitative and qualitative studies. Although neither a formal statement nor expert report, the 14-day timeframe for reconsideration of applications restricted A’s ability to meet the requisite formalities. Dr Ahearne is an experienced lecturer and doctor of sociology, with 20 years of experience working as a stripper. With such extensive lived and research experience, it is difficult to think of a more suitable individual to comment on the stigmatisation of stripping. Despite this, the EAT placed no weight on her evidence, dismissing it with “legal questions are for the Tribunal”. This ignores that hearsay and documentary evidence is admissible in Tribunals which must assess “as a matter of common sense” the reliability of evidence.

The EAT also demonstrated little regard for A’s medical evidence, with her GP records confirming she previously received treatment for conditions A argued would be aggravated by being outed. The EAT dismissed the records for not specifically assessing how being outed would impact her mental health. In doing so, it effectively imposed a requirement of an expert psychological assessment confirming that mental health harm would occur. This is not the law: Claimants must only show risk of harm, rather than conclusively prove it would occur. Furthermore, the cost of such an assessment would be disproportionate to the value of the claim, being £1,846.56. A was inevitably unaware that such specific evidence would be required for the preliminary hearing at which the decision was unexpectedly made, and the 14-day limit for a reconsideration application again presented limited time to obtain such evidence. Although A could have applied to submit fresh evidence to the EAT, she did not envision that evidence showing that actual harm would result, rather than a risk of harm, was necessary. The EAT’s approach conflicts with the Tribunals’ overriding objective, requiring avoiding unnecessary formality, promoting flexibility, and dealing with cases in ways proportionate to complexity.

Additionally, the EAT gave inadequate weight to A’s employment prospects. A argued the judgment would be easily located due to her unique name, either using Google or the Tribunal database, and that the risk to her employment prospects was compounded by potential press reporting. Despite acknowledging that the EJ failed to give any account whatsoever to this risk, the EAT refused to allow the appeal stating ([56]-[61]):

I am advised that employers or recruitment agencies use the Government online register when scrutinising job applications. But I do not know how widespread the practise is or whether it would be likely to affect the Claimant… No evidence was offered to indicate that searching the Claimant’s name would produce a “hit”. Given the variables that control the operations of internet search engines, I am unwilling to assume that a search against the Claimant’s name would necessarily take a user to a judgment on the ET or EAT database. The capabilities and parameters of search engines are not matters on which I am well informed and such experience as I have suggests that such a search would not necessarily reveal a judgment bearing the Claimant’s name.

It is common knowledge that, in the 21^st century, employers use search engines to research prospective job candidates. Research confirms this and there is commentary on the privacy risks posed to job applicants by the Tribunal judgment database. A simple Google search shows A’s name is unique. The EAT also created a further hurdle by claiming that more than a “name match” would be required to show a risk of prospective employers identifying A as the Appellant [57]. The meaning of this is unclear: if it means other identifiable information must be contained in the judgment, that was satisfied in A’s case as, for instance, the city she resided in would be noted. 

Rather than concentrating on A’s specific arguments, the EAT focuses on the potential reaction of A’s friends. It reasons:

If she is young and has a friendship circle that is also young, it is possible that the knowledge that she had been a stripper would have no or little impact on her dignity and reputation. My impression is that social attitudes are heavily dependent on age and that the young are less likely to be influenced by such considerations. Likewise there are those who, quite apart from age considerations, might (quite sensibly) take the view that they should not allow the past to affect their treatment of her…

It reaches these conclusions with no evidence as to A’s age, her friend’s ages and perspectives on stripping, or to indicate that younger or other people “quite sensibly” do not attach stigma to stripping. It is unclear why the EAT felt able to rely on its own assumptions to make findings, whilst placing an onerous evidential burden on A. In lieu of evidence, the EAT also assumes that the judgment would not attract publicity ([56]). To the contrary, several commentaries have been published and legal issues facing strippers generally attract media and academic interest.

Open justice

Both Tribunals failed to properly consider whether anonymity was “necessary” to protect Article 8, with the arguments and evidence advanced by A showing, on the balance of probabilities, it was. This is illustrated further by the disproportionate emphasis afforded to the principle of open justice, and the failure to properly balance the principle against Article 8.  

Open justice is undeniably a crucial constitutional principle and Rule 50 provides it must be given “full weight”. Per Lady Hale in R (C) ([1]) “it is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to the law”. Protected by both the common law and Article 6, the first element, according to Lady Hale, is that hearings are open to the public, and the second is that parties’ names should be published.

However, when determining anonymity applications, the Tribunal must balance the principle against countervailing ECHR rights. This is set out in Rule 50 and in case law. In re S (A Child), [17] Lord Steyn stated:

…where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary … the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.

In Ahmed, the Supreme Court stated specifically that “naming a person in a judgment may infringe their rights protected by Article 8 ECHR” and “where Article 8 rights are engaged on the one hand and Article 10 and/or Article 6 rights on the other, a balancing exercise must be undertaken” ([19]-[20]).

The EAT paid only lip service to the applicable test. It cited Lord Steyn in re S and acknowledged “it is a question of judgment in each case whether the “full weight” of open justice tips the scales against the weight of right to privacy. Neither enjoys a priori superiority”. It also commented that “full weight” means “considerable weight” (not absolute weight), and that both Article 6 and Article 8 are “of similar weight”. Nevertheless, it entirely failed to mention proportionality. It did not attach “significant weight” to A’s Article 8, imposed a disproportionately high evidential burden on her, and afforded open justice inordinate weight.

For instance, the EAT approached anonymising a party’s name as almost always irreconcilable with open justice. However, in R (C) ([18]) Lady Hale stated, “in many, perhaps most cases, the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved”. She noted that ensuring effective press reporting requires hearings to be public, but not that names are published. Lord Sumption expressed a similar view in Khuja [30]:

None of this means that if there is a sufficient public interest in reporting the proceedings there must necessarily be a sufficient public interest in identifying the individual involved. The identity of those involved may be wholly marginal to the public interest engaged.

Citing Khuja, the EAT accepted that A’s name was likely to be “wholly marginal” to the public interest. However, rather than relying on the Supreme Court guidance in R (C) and Khuja, it again refers to Kaim Todner in which the court suggested that the public’s awareness of names may lead to new evidence being provided. As mentioned, Kaim Todner was decided prior to the Human Rights Act 1998 and concerned judicial review. Further, the EAT conceded that new evidence being brought forward because of names being published is likely only in an “exceptional case”. Nonetheless, it attempts to justify diverging from binding Supreme Court guidance by proffering that “if a witness is tempted to mislead the court the knowledge that what he or she says may be reported to those who know the true position is capable of deterring false evidence”. It is not clear what the authority is for this or what the relevance was to the case, with there being no indication A was likely to mislead the Tribunal and that someone with knowledge of the “true position” would deter her from doing so.

The EAT also ignored the relevance of the subject matter to the balancing exercise. In X v Y, the EAT anonymised the Appellant’s name because the case discussed “highly sensitive matters”, being gender identity and mental health, reasoning that there were no “strong countervailing reasons” against prioritising Article 8 and:

…the very limited impact upon the Article 6 principle of open justice arising from anonymisation. Moreover, this is not a case in which Article 10 rights of freedom of expression are significantly engaged… There will be no negative impact on the Respondent as a result of anonymisation. ([39]-[41])

The same can be observed of A’s case. However, the EAT claimed X v Y shows only that “Article 8 rights to privacy may outweigh the principle of open justice. It also emphasises that each case depends on its facts” ([40]). This is a serious understatement and simply reflects what is expressly stated in Rule 50. Instead, X v Y shows that Article 8 is given more weight when the case concerns “sensitive matters”, which, given the stigma attached, should include stripping. A similar lack of engagement is illustrated with EF v AB, in which it was held that “public prurience” in sex was not enough to justify interfering with Article 8. In A’s case, the EAT observed that EF v AB showed that “sexual activity in private between consenting adults should be regarded as attracting a high degree of privacy” and “that if the Appellant sought to keep her activity as a stripper private, she would be entitled to rely on Article 8 ([41]). However, it finds A did not keep her stripping private enough. This is inconsistent with other parts of the judgment where the EAT found that A, in fact, did not sacrifice her right to privacy by stripping. Finally, the EAT, relying on Roden, ignores that anonymity was refused to the journalist accused of sexual assault due to several strong reasons for favouring open justice, including that the police considered him a danger to the public. No such factors were relevant in A’s case.

Access to justice

The EAT also did not sufficiently account for A’s right to access justice. This is protected as a “Convention right” per Article 6 and should form part of an assessment of what is “necessary” in the “interests of justice” per Rule 50. Furthermore, the Supreme Court in Unison called it a “constitutional right of access to justice…inherent in the rule of law” and highlighted its particular importance in the employment law context:

When Parliament passes laws creating employment rights… it does so not merely in order to confer benefits on individual employees, but because it has decided that it is in the public interest that those rights should be given effect…the possibility of claims being brought by employees whose rights are infringed must exist, if employment relationships are to be based on respect for those rights… those procedures can only work fairly and properly if they are backed up by the knowledge on both sides that a fair and just system of adjudication will be available if they fail. Otherwise, the party in the stronger bargaining position will always prevail. It is thus the claims which are brought before an ET which enable legislation to have the deterrent and other effects which Parliament intended.

These considerations applied in A’s case. Furthermore, Lord Neuberger also underlined the importance of ensuring access to justice in cases of “general importance”. A’s case concerned allegations of ‘false self-employment’ which, as Uber shows, is a salient matter.  

Refusing anonymity to A clearly interfered with access to justice. The EAT accepted that A would drop her claim, but maintained that ([56]):

The law does not exist to provide access to justice whatever the cost. The principle of open justice represents a commitment to transparency that is designed for the greater good. It may not always serve the interests of the individual.

A was not seeking access to justice “whatever the cost”. Rather, she sought anonymity as it was “necessary” to protect her rights when balanced against the open justice principle. Despite highlighting that open justice should promote the “greater good” and that the focus must be on the “benefits the principle offers to the legal system as a whole rather than individual cases” ([36]), the judgment only preserves the interests of the employer: indeed, the EAT acknowledged that anonymity was only resisted by the Respondent so A would withdraw her claim. Furthermore, the “greater good” is not served by an EAT judgment that sets such a high evidential threshold for anonymity. The judgment allows the Respondent to weaponise the principle of “open justice” to subvert justice itself.

The EAT also failed to engage with the tests regarding the lawfulness of restrictions on access to justice. In Kennedy ([79]), Lord Neuberger stated that restrictions must be (i) “authorised by primary legislation” and (ii) restrict access only when reasonably necessary to fulfil the objective of the legislation. The EAT did not consider this test and nothing within the primary legislation behind the ET Rules suggests refusing anonymity in A’s case was “necessary” to fulfil any statutory objective.

The judgment also gives rise to further access to justice issues. First, it was unclear whether A would lose anonymity if she appealed the EAT decision. This may have arisen only if the Respondent successfully cross-appealed the grant of anonymity regarding preliminary proceedings ([69]). However, some commentators interpreted the judgment as making A’s anonymity conditional on the withdrawal of her claim (emphasis added):

For the reasons given, and on the understanding that the Claimant intends to drop her claim against the Respondents, I will continue the anonymity order pronounced by Griffiths, J in respect of this judgment and that of the EJ. ([71])

If A risked losing anonymity in the preliminary proceedings if she appealed, this further restricts access to justice and potentially unlawfully interferes with the right to appeal. Secondly, A did not appeal due to the potential costs of losing. In appeals from the ‘no-costs’ jurisdiction of the EAT to the Court of Appeal, Appellants can apply for protection from paying the Respondent’s costs. However, in appeals to the Court of Session, there is no equivalent route to apply for protection. Although some protection can be afforded by common law Protective Expenses Orders, these are extremely difficult to obtain. Legal aid did not entitle A to full protection against cost. A final concern was that the claim was issued on 4 January 2020, yet the EAT judgment was not handed down until 13 October 2021. Understandably, A had exhausted her energy with the proceedings, showing the serious threat delays and under-resourcing of the Tribunal system pose to access to justice.

ii. Accounting for irrelevant factors

The aspect of the EJ’s judgment that attracted the most criticism from commentators is the emphasis placed on A’s choice to work as a stripper. A was not ‘forced’ into stripping any more than other workers are ‘forced’ to work to make a living, with stripping offering a flexible way of funding her studies. As summarised by the EAT, the EJ found that: 

…the Claimant should have foreseen that working as a stripper might harm her career prospects. That being so any adverse consequences resulting from the publication of a judgment bearing her name should be regarded as the consequences of her choice of work. He noted that other work options that would not have had these consequences were open to her… He observed that she had willingly undertaken the risk of abuse and violence when she worked as a stripper.

If A suffered harm from the EJ’s refusal to grant anonymity, this was therefore her fault.

From a legal perspective, this analysis is flawed. An individual does not sacrifice their rights under Article 8 or to access justice by selecting a profession that attracts certain risks, especially when they make significant efforts to keep her work private. Whilst A was aware of the risks involved if worked using her real name, she deliberately sought to avoid them. A had no idea that her labour rights would be violated and that she would issue a Tribunal claim. The analysis is also inconsistent as the EJ imputes a full appreciation of risks onto A whilst simultaneously failing himself to appreciate the risks.

This analysis is also extremely problematic for non-legal reasons. It amounts to “victim blaming”: any harm suffered would be A’s fault, even if inflicted by another and including sexual violence. This represents an archaic, dangerous attitude towards strippers and sex workers, where they are considered less deserving of protection because of their line of work. Although A chose her line of work, sex workers do not choose the risk of harm sex work attracts. The emphasis on “choice” is also questionable as paid labour under capitalism, including sex work, is never entirely “free” as workers must sell their labour power to survive. Indeed, the job market for students is limited and student finance entitlements inadequate compared to rising living costs, contributing to an increasing number of student sex workers.

To an extent, EAT diverged from this analysis. It acknowledged A “made attempts to protect her name and identity” and that “by choosing to work as a stripper she did not forfeit her right to rely on Article 8” ([48]-[49]). However, it still refused to allow the appeal. It is entirely unclear from the judgment why the EJ’s emphasis on A’s decision to work as a stripper, combined with his failure to account for Article 8 and access to justice, was insufficient.

Furthermore, the EAT also accounts for irrelevant considerations. As mentioned, these include the hypothetical opinions of her “young friends”. It also notes, for instance, that the claim was cojoined with a claim brought by another dancer who did not seek anonymity, despite also having a “distinctive name” ([23]). After emphasising the need for anonymity applications to be decided on strictly relevant evidence, it is particularly concerning that the EAT accounts for another Claimant’s choice not to seek anonymity. This ignores that each case must depend on its own facts, as the EAT otherwise acknowledges.

This begs the question: why did the EAT fail to engage with the applicable tests? One possibility is that the stigma A warned of influenced the EAT’s perspective on stripping, failing to see it as legitimate work attracting labour rights. Its claim that “it is notorious that sex work is often accompanied by exploitative behaviour, economic hardship and coercion” ([14]) is particularly revealing. Although true that abusive workplace practices occur in SEVs and the broader sex industry, this is true of all industries. Indeed, evidence suggests that exploitation is more prolific in other industries, such as farming. This statement thus reflects an outdated attitude where sex workers are seen as victims lacking agency rather than workers deserving rights, and completely ignores that combatting labour exploitation requires the vindication, not suppression, of labour rights.

5. Nil-cap policeis and further threats to the right to strip

In March 2022, Edinburgh Council voted to ban SEVs by setting the number of yearly licences to zero (known as a ‘nil-cap policy’). Following the approach of cities such as Chester and Swansea, the Council claimed this would reduce violence against women. Legally, licensing decisions must be evidence-based, yet is not hyperbolic to state that there is literally no evidence that SEVs cause or even correlate with such violence. To the contrary, the Council heard from countless organisations and workers who emphasised the harm that would be caused by destroying over a hundred jobs. As most strippers are women, such policies are likely to amount to indirect gender discrimination. Two expensive public consultations showed a lack of support for the ban, and the Council will likely now waste further public money on defending legal challenges coordinated by United Sex Workers and dancers.

The legality of nil-cap policies is seriously doubtful and will be discussed in a further blog post. However, it is crucial context to A’s case as it shows the difficulty strippers increasingly face in simply accessing lawful workplaces, let alone asserting labour rights. One of the main concerns expressed by Edinburgh dancers is that a nil-cap would lead them to work in underground and unregulated venues. The approach to anonymity followed in A’s case combined with the doctrine of illegality would therefore severely restrict the ability of strippers to challenge labour rights violations in such venues.

6. Conclusion

This analysis shows that the EAT’s judgment was seriously problematic. It did not apply the correct test, where A’s rights under Article 8 and to access to justice should have been carefully balanced against the principle of open justice. The judgment threatens the labour rights of strippers at a time when they are endangered by anti-SEV policies.

It is hoped that this commentary informs challenges to the precedent set, detrimental to both strippers and other workers needing anonymity. It is also important to note that individuals with the specific evidence desired by the EAT, such as evidence regarding the probability of employers discovering the judgment or expert psychological assessments, may rely on the judgment to obtain anonymity. Finally, it aimed to highlight the crucial work of United Sex Workers in upholding the rights of sex workers.

(Suggested citation: D Worden, ‘”We want to strip off our clothes, not our rights”: A v Burke and Hare’, UK Labour Law Blog, 8 April 2022, available at https://uklabourlawblog.com/)