Changes to the Accessibility of the Public Register
Historically, copies of Employment Tribunal judgments kept on the Public Register could only be obtained by visiting the tribunal office in Bury St Edmunds or requesting a copy of the judgment in the post upon payment of a fee. However, since 2017, Employment Tribunal decisions and judgments have been readily discoverable, easily accessible and free using everyday internet search engines. Interested persons don’t even need to visit the HM Courts and Tribunal Service Public Register website; a general search for a parties’ name in Google, Bing or Duck Duck Go can bring up claim details or a direct link to the downloadable judgment.
What Information is Available?
Most claims brought to the Employment Tribunal after 2017 are listed in the online Public Register and, even if the claim is withdrawn, the entry will contain basic information relating to the nature and type of claim. If the claim proceeds to a full hearing, the final judgment will be posted on the Register and can be downloaded. This judgement is likely to set out the facts of the case, the parties’ arguments and the tribunal’s reasoning and decision. Other documents filed with the Employment Tribunal including claim forms, defences, evidence bundles and witness statements are not available to the general public. Claims settled or withdrawn at the ACAS conciliation stage are not contained in the database either.
Privacy Implications and Risks for Employers and Employees
Employees and employers who have been a party to Employment Tribunal proceedings should be aware that sensitive details and commercial information which are referred to in judgments are now readily accessible by members of the general public via the Register of judgments.
For an employer, judgments may contain sensitive commercial information including the names of clients, internal organisational details and information on staff remuneration. Extracts of the employer’s contracts, staff manual and policies are often quoted or referred to in judgments. Information relating to employee pay and bonus schemes often feature in judgements. Judges can be critical of employers and management in their judgements, including in relation to culture, decision making and procedures. These may be damaging to the reputation of a business and its managers and officers personally.
For an employee, future employers can learn details of previous claims. Many employers now routinely search the internet and social media for information on applicants. These general internet searches are likely to reveal any Employment Tribunal claim made by the applicant and any corresponding judgment. The judgments may reveal information about the employee/applicant which that person does not want generally known, such as information about health, a disability or an allegation of misconduct or poor performance.
Employers need to be circumspect when making decisions about applicants and employees based on Employment Tribunal judgments. This is because if an employer relies on a judgment in a discrimination claim, the employee may be able to bring a victimisation claim under the Equality Act 2010.
Protecting Sensitive Information and Reputations
Employment Tribunals can exercise a discretionary power under rule 50(1) of the Employment Tribunal Rules of Procedure 2013 to prevent or restrict the public disclosure of information relating to a claim or proceedings. However, this is a high hurdle and Tribunals are often reluctant to grant the order. The reason is that ‘open justice’ is the paramount objective of the courts and the restriction on the publication of information on proceedings should only occur when that publication would ‘reasonably deter a party from seeking redress or interfere with the effective trial of the cause.’ In recent cases relating to applications for anonymity, some parties have argued that the publication of the judgment breaches the right to privacy under Article 8 of the European Convention of Human Rights (ECHR). However, the courts have consistently ruled that privacy rights must be balanced equally with Article 6 rights to public hearings and Article 10 rights to freedom of expression. To date, the courts have granted anonymity to parties only in extreme cases, including if the motivation of the claimant in the proceedings is suspect – including spurious claims to damage the reputation of the employer or blackmail the employer into making a settlement offer. Additionally, where the proceedings involve a child or vulnerable person, the court may grant the order.
Practical and Prudent Measures
The only way to be certain that an employee’s or employer’s sensitive details stay out of the public domain is to avoid an Employment Tribunal claim altogether. This can be done before a claim is filed through negotiation or mediation resulting in a settlement agreement that includes the relevant confidentiality provisions.
If the matter does proceed to litigation, employers in particular should be ready to deal with and react appropriately to the publication of sensitive or damaging information and findings.
If an employee or employer feels that an anonymity application should be made, the party should ensure they properly explain and evidence the detriment and damage that can be caused through publication. Tribunal judges have been clear that the mere publication of embarrassing or damaging material is not a good reason for restricting the reporting of a judgment. Limiting the application to redactions or a time-limited publication restriction will improve the prospect of an application succeeding.
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