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Author: Keith Potter
Employment lawyer, Keith Potter, discusses the risks associated with Employment Tribunal decisions being published online.
Earlier this year the Employment Tribunals began publishing their decisions on line. Prior to this, it was possible to obtain a hard copy of a Tribunal decision if the name(s) of the parties and the case number or the approximate date of the decision were known. All that is required now is to access www.gov.uk/employment-tribunal-decisions and search against the name of the employee or employer. For the reasons outlined below this ease of access has some significant repercussions which require consideration by both employers and employees when making decisions on the handling and pursuit of an Employment Tribunal claim.
A large proportion of the decisions which can be viewed on the website simply record the fact that a claim was dismissed on withdrawal by the claimant. This is the normal outcome where a claim is settled by negotiation between the parties or via ACAS. It has traditionally been common for the parties to state as part of a settlement agreement that the fact of the settlement, as well as its terms, would be confidential. The desire for confidentiality has now been compromised to some extent by the online access facility. Although the published decision does not state that a case has been settled, it does disclose the fact that a claim has been brought by a named employee against a named employer. The recording of the fact that a claim has been dismissed on withdrawal makes it legitimate to infer that the employee’s claim may have been settled.
There is considerable variation in the degree of information which is available online about cases which are the subject of a full hearing. In some instances the published record may simply record the formal elements of the Tribunal’s judgment – for example, the fact that an unfair dismissal claim or a claim for non-payment of salary or bonus was dismissed or was successful. It may say that an employee contributed to his dismissal by a specified percentage. The judgment may also state the amount payable to an employee whose claim succeeds but will typically give no further details. If a decision is given orally by a Tribunal at the conclusion of a hearing, the reasons for the decision will be given orally and there is no obligation on the Tribunal to record those reasons in writing unless asked to do so.
In other cases the published decision will state the Tribunal’s full reasons for its decision and its conclusions. Full reasons are to be expected in cases involving more complex issues such as unlawful discrimination or whistleblowing, for example. It is a normal part of the judicial decision-making process that Tribunals should summarise the respective cases of the parties and state the findings of fact made by the Tribunal. If, for example, an employee claims that he/she was dismissed for a discriminatory reason (age or gender, for instance) and the employer’s case is that the employee was just incompetent or awkward and unco-operative or aggressive and ill tempered, these factors will be recorded by the Tribunal.
If the evidence given by the employer includes a description of circumstances in which the employee did indeed behave in a violent and ill-tempered way, for example, and the Tribunal accepts this evidence, this will be reflected in the Tribunal’s statement of reasons for its decision. If an employee is concerned by the possibility that aspects of his character, conduct or performance may be put in the public domain through publication in a Tribunal’s decision, publicity is a factor that the employee ought to consider when pursuing a claim. Such aspects could come to the attention of a future prospective employer and might have an adverse effect on job prospects. An employee’s future earnings will probably vastly exceed any compensation that a Tribunal will award, so is it worth the risk?
By the same token an employer may have reason to be concerned about the possible adverse effects of publicity. An employer for example may be found to have inadequate or no policies or procedures on key issues such as discrimination or discipline. Or it may have policies on matters such as sex discrimination or harassment, for example, but may completely fail to apply and enforce them in practice. Or its evidence on key points may not be accepted by the Tribunal because a witness is found to be evasive and unreliable. These are all factors which may damage an employer’s attractiveness to future employees, if recorded in a Tribunal’s decision and put in the public domain. This may place significant pressure on an employer to consider settlement. Claimants and their lawyers will be alive to this.
Tribunals are sometimes asked to make a restricted reporting order preventing one or other or both parties from being identified when a decision is published. The cases in which such orders are sometimes made tend to be ones involving allegations of sexual impropriety or medical evidence connected with a complaint of disability discrimination. Tribunals are required to give full weight to the principle of open justice and the right to freedom of expression. For this reason restrictions on the publication of decisions are not readily imposed by Tribunals.
The publication of Tribunal judgments online is not just a useful tool for researchers. It creates potentially greater risks for both sides in an employment dispute. Both employers and employees need to carefully consider reputational risk if details of their cases are brought into the public domain.