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Most hearings in the employment tribunal are held in public, which means that the press and members of the public are free to attend and listen to the evidence heard and the judgments delivered.
But what can be discovered about pending cases before the matter goes to trial?
The Public Register
There is a public register of tribunal claims but, since 2004, the only documents entered on it are judgments (including costs orders) and written reasons for judgments. Pleadings (claim forms and defences), witness statements and tribunal bundles are not made available to the public.
There are also circumstances in which access to judgments and written reasons is restricted where evidence has been heard in private and the employment judge orders that the written reasons are to be omitted from the public register. These usually concern cases involving allegations of sexual misconduct or disability discrimination cases where the tribunal has heard evidence of a personal nature (and made a restricted reporting order).
Copies of judgments and written reasons kept on the Public Register can be obtained either in person by visiting the tribunal regional office in Bury St Edmunds or in writing, quoting the names of both parties and enclosing payment of an administration fee.
Lack of Transparency
The limited nature of the information available on the Public Register has been criticised and challenged.
In 2009 Peninsula Business Services sought to use the Freedom of Information Act to compel the Department for Business, Innovation and Skills to make public the name and address of respondents to tribunal proceedings. Initially the challenge succeeded. The Deputy Information Commissioner held that details of cases brought before courts and tribunals should normally be in the public domain unless there was a good reason for confidentiality.
However, this decision was appealed and the Information Appeal Tribunal ruled that the information was exempt from disclosure.
The main arguments against disclosure were that:-
- It would put respondents at risk of unwarranted damage to their reputation (caused by initial press reports of claims which were later found to be baseless);
- Public knowledge of disputes would reduce the chances of settlement in advance of the hearing; and
- Disclosure would make it easier for organisations to market their services directly to respondents and increase the likelihood of them being represented, which was not seen as a desirable outcome in public policy terms.
Special Rules apply in whistleblowing cases.
When submitting a claim, claimants are invited to indicate on the claim form if they wish a copy of the form (or information from it) to be forwarded on their behalf to the relevant regulator.
If this box is ticked, the tribunal service checks the details of the claim to ensure that a whistleblowing claim is in fact being made and, if satisfied, forwards details to the relevant regulator.
At no point during this process is disclosure made to the public about the claim or the parties involved.
The Daily Cause and Press List
For non-parties, the only information available about a case in advance of a hearing is that published in the daily cause or press list supplied by the Tribunal Service via the Court Service website.
The press list is prepared and sent to Courtserve where it can be accessed free of charge following online registration for the service. It contains information regarding the tribunal venue, the hearing date, the case number, the jurisdiction code, the claimant’s initials, surname and the town in which he or she lives and the respondent’s name and the town in which their business is based.
The press list is made available on each Wednesday for the week after the following week.
The daily cause list, which is displayed in the reception area of each tribunal office, contains the information appearing in the press list, as well as the room number for the hearing, the estimated length of the hearing, the names of the representatives, the tribunal clerk, and the employment judge and members.
The Civil Courts
In the civil courts, since October 2006, non-parties have been permitted access as of right to any judgments and orders made in public and to all pleadings. Other documents – such as expert reports, witness statements and skeleton arguments – may be made available (before trial) on application if disclosure is shown to be in the public interest. Witness statements are also available for inspection during the course of a trial.
In practice, access to information relating to tribunal claims is limited to claims that go all the way to a public hearing (and ultimately a decision). For non-parties, it is not possible to obtain details of claims brought in the early stages of litigation. By contrast, information regarding civil court claims is made available any time after pleadings have been filed. The reason for this discrepancy of treatment is not clear.
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