Posted Friday 18th January 2019
In times of increased awareness around the reputation of employers, the new online tribunal claims database is the latest in a series of significant developments employers should bear in mind. With the number of claims being put on the database rising, an understanding of how the system works, and the kind of information available to the public, can be invaluable for employers in avoiding reputational risk.
There are two categories of information available on the database: employment tribunal decisions where cases have proceeded to full hearings, and judgements dismissing claims that have been settled or withdrawn without going to full hearing. The online database captures both, meaning that even if claims are resolved out of court, a record of that claim will be online for all to see. The database records claims from when an ET1 form is submitted – the very first step in lodging a claim – even where an employer eventually settles through a COT3, or through a more formalised settlement agreement.
For employers, the risk to reputation lies in the database serving as a publicly available archive of claims brought against them, that employees and prospective employees can access and use to gauge the credibility of a company. Individuals can get a feel for whether their prospective, or current employer has a regular pattern of settling claims issued – and indeed the number and types of claims being brought against it in the first place. This knowledge may encourage employees that decide to bring tribunal claims to hold out for a settlement offer if they are aware that the employer has previously settled claims without going to final hearing.
The content and scope of information captured on the database extends beyond merely the name of the company and the employee; where claims are withdrawn, a judgment will be listed on the database with details such as date of judgment, tribunal location, and the ‘jurisdiction code’, which identifies the type of claim (e.g. unfair dismissal, sexual harassment, discrimination, unlawful deduction from wages, etc). This means that anyone can see who has made a claim, the nature of the claim and against which organisation.
Furthermore, there is inconsistency around what other information appears on the database where claims are withdrawn or settled. This inconsistency may due to variations between the information recorded on the database by the different tribunals, or due to differences in the information supplied to the tribunal explaining the reason for withdrawal of a claim. As a consequence, there is a postcode lottery, with some withdrawal judgements on the database stating that a settlement was reached, some including the amount paid, and others even stating whether apologies were given by the employer. All these details can influence perceptions of an organisation and, on a more practical level, can afford advantages to disgruntled employees in deciding whether and how to approach bringing a claim.
The key is obtaining legal advice on any settlement reached and whether to use a COT3 or settlement agreement, so that the exact wording to be sent to the tribunal withdrawing a claim is agreed in advance by the parties. For employers, the focus should be on the database recording the settlement as a withdrawal of a claim; in other words, without mentioning that a settlement has been reached. In most cases, a settlement agreement will allow the employer to better control the narrative.
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.
Since February 2017, all tribunal judgments and written reasons have been published online (unless there is a restricted reporting order).
