The Deputy Information Commissioner recently ordered the Department for Business, Enterprise and Regulatory Reform (BERR) to disclose names and addresses of the respondents to all Employment Tribunal claims lodged since October 2004. The Information Commissioner considered that, on balance, the public interest was best served by disclosing the information.
The Order was made following a request by a complainant under the Freedom of Information Act 2000 for a list of the names and addresses of respondents to Employment Tribunal claims presented since October 2004. Before this date, the public were able to access both respondents’ and claimants’ details using the Register of Employment Tribunal Applications. This was abolished by the 2004 Tribunal Rules of Procedure, following recommendations by an Employment Tribunal System Task Force set up in 2001. BERR refused to comply with the request and the complainant subsequently contacted the Commissioner to complain about the way his request for information had been handled.
BERR argued that disclosure would “prejudice the effective conduct of public affairs” (an exemption under section 36(2)(c) of the Freedom of Information Act). BERR said the disclosure of information leave respondents at risk of unwarranted damage to their reputations; that it would expose employers to direct marketing approaches by organisations and therefore increase the likelihood of formal representations at Employment Tribunal hearings. It would also expose them to more publicity, thus reducing chances of settlement of their disputes in advance of a Tribunal hearing.
The Commissioner decided that any prejudice to the ‘conduct of public affairs’ was minimal. Bearing in mind the information sought by the complainant was made public via the Register from 1965 until October 2001, BERR had not provided any evidence that the disclosure of the information sought during this period had resulted in any of these adverse effects. The Commissioner therefore concluded that there is a very weak (if any) public interest in maintaining the exemption. The Commissioner said this public interest was outweighed by the public interest in “open justice” so that the details of cases brought before Courts and Tribunals should normally be in the public domain unless there is a good reason for confidentiality.
What this Order means for employers
Currently any member of the public can visit the Tribunal offices at Bury St Edmunds in person and search the register of Tribunal judgements for any judgement of the Employment Tribunal in England and Wales. If the details of the judgement are known, it is possible to obtain a copy by post upon payment of a fee (currently £10). This information is not available on line. As regards details of Tribunal applications, there has not yet been any announcement on whether this Order by the Information
Commissioner will lead to the revival of the public register of Tribunal applications. Employers should, however, bear in mind that anyone can now make a similar application under the Freedom of Information Act and have access to all respondents’ names and addresses in Tribunal proceedings. Whether in the “information age”, this will have any adverse impact on businesses, as argued by BERR, remains to be seen.
Click here for the Deputy Information Commissioner’s Decision Notice.