In recent weeks, judgments of the Employment Tribunal have started to be published online (the database can be accessed here). Whereas, in the past, interested or merely curious parties would need to undertake manual searching for these decisions, they can now access them easily online, whether for legal research, collation of statistics or even for employees wishing to investigate employers.
What was perhaps not so apparent for employers when this step was proposed was that the published “judgments” would include the dismissal of proceedings on withdrawal or on settlement via Acas (using the COT3 form). Even so, Rule 52 of the Employment Tribunal Rules is clear that where a claim (or part) has been withdrawn, unless there are reasons not to do so, the Tribunal shall issue a judgment dismissing it.
Certainty vs confidentiality
Whilst the ET database gets up and running, not all withdrawals of proceedings are published currently but many now will be. Furthermore, where parties settle a claim via Acas, there is a possibility that the published ET decision will not just refer to withdrawal but to settlement as the reason for it (although not the details of course).
This may create a dilemma for some employers, since the only way to achieve certainty that proceedings are brought to an end and unable to be resurrected, is if the ET dismisses the claim –leading to a judgment to that effect. Whilst for some, publication of a neutral judgment confirming withdrawal of proceedings resulting from resolution by settlement agreement (or via COT3 that proceedings are withdrawn on settlement) may not be of concern, for others, confidentiality is an influencing factor for settlement. In these latter situations, employers will need to consider carefully the timing and mechanics of settlement, achieving resolution before proceedings are issued being the preferred option if confidentiality is deemed paramount.
An additional factor to bear in mind is that many settlement agreements will require the parties to undertake to treat, not just the terms of settlement but the fact of settlement, as confidential. Any such provision will need to reviewed to ensure it remains legally viable if the fact of a claim becomes public knowledge through no fault of ether party. The extent of commitment to confidentiality should also reflect this change.
There is no doubting that easier access to ET decisions provides a useful tool to lawyers and beyond, even for employers and employees themselves. However, not all employers will have appreciated an important consequence of this change in ET practice which is that, even on settling an employment dispute, if proceedings have been issued, they cannot necessarily keep the fact that a claim was brought against them a secret. This should be factored into any settlement strategy going forwards.