Posted Saturday 26th January 2019
Since February 2017, all tribunal judgments (interim and final) and written reasons (where requested) have been published online (unless there is a restricted reporting order in place).
So, what rights does an individual or a company have to restrict such publication? This article looks at removal requests in relation to tribunal claims that have been recorded on the database. This follows a recently published blog post looking at how the new online tribunal claims database affects employers in a time of increased awareness around reputation.
Online publication means that there is a permanent record of any cases which have been heard or dismissed. In the case of employees, future recruiters may be able to search for an employee via the database, which could mean that an employee may effectively start “on the wrong foot” with prospective employers due to their previous claims. This initial impression may be even further damaged where it has been found that their previous claim was brought without merit, or there was some criticism of their conduct in written reasons given by the tribunal. Equally for employers, it could have an impact on prospective candidates’ appetite to work for the business should it appear that there are particular trends or patterns with tribunal claims against the firm.
Under Rule 50, a tribunal has the power to make an order preventing or restricting the public disclosure of proceedings where necessary in the interests of justice, national security or to protect any person’s rights under the Equality and Human Rights Commission (EHRC). These protected rights are commonly privacy and the right to a private and family life, and such reporting restrictions are usually put into place where the matter is of a sensitive nature, such as disability or race discrimination, or sexual harassment or misconduct. Where a restricted order is in place no details of the hearing of a claim or its disposal should appear on the database.
In a recent case, a claimant brought tribunal proceedings against her employer, and that employer applied to strike out the claim on the basis of her “scandalous and vexatious conduct”. At the preliminary hearing, she acted “disruptively”, but the strike out application was dismissed. The judgment with full written reasons was entered onto the online database. The claims were then dismissed at a final hearing, the judgment of which was also published.
The claimant applied for an order that both judgments should be removed from the online database. In the absence of removal, she asked that the judgments should be anonymised. She stated that the online publication had meant that she had been unable to obtain new employment and later claimed that it was a breach of her right to privacy under Article 8 of the EHRC.
At the first hearing of her application, the Judge refused: stating there was no discretion not to publish a judgment. The claimant appealed.
The Employment Appeal Tribunal (EAT) found that the original decision had been correct; the principle of open justice was not restricted to hearings being public, but also that the judgments were made publicly available. It was found that the tribunal’s discretion to anonymise in cases concerning more sensitive elements was wide but would rarely provide for a complete restriction on any publication at all. The EAT therefore held that there was no power to exclude judgments from the register.
With regards to anonymisation, the strike out hearing had been in public and therefore the claimant had no expectation of privacy. The EAT also took into consideration that it had been over a year since the strike out judgment was published, and that there had been no previous application for anonymity.
This decision makes it clear that, despite the potential impact on future employment, all judgments and written reasons must be published online. Where an employee or employer is concerned about such issues, they should apply for a restricted reporting order or anonymisation at the earliest opportunity to avoid losing any expectation of privacy.
Both parties should also bear in mind that either of them also has the right to request written reasons for the decision and that these will also be published. Such requests may cause further details of any claim made or conduct cited to come to light, which could cause further embarrassment.
This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.