Since 9 February this year, Employment Tribunal decisions are accessible online. Previously, such decisions were only obtainable at the Central Office of Employment Tribunals, this being in Bury St Edmunds for English and Welsh cases, and Glasgow for Scottish cases. At present, a number of cases from 2016 have been added to the database, but it is currently unclear whether additional past judgments will be added.
The Tribunal database
The website contains a key word search bar. This could be used to search for items such as:
• prospective or current employees’ names;
• prospective or current employers’ names; and
• judges (this is more relevant to legal advisers in helping you evaluate any claim).
Searches can be filtered by country (England & Wales or Scotland), type of claim, and decision date.
Where there has been a fully reasoned judgment, at the end of a case, then this is recorded in a public decision. The decisions have been publicly available for some time. However, the database goes further than this. Where a claim is settled or withdrawn, this is recorded in the form of a decision. This decision, too, is publicly available. It gives the names of the parties, the jurisdiction under which the claim was brought, and the outcome. If the case is withdrawn, then it will state that it was dismissed upon withdrawal. Some of the decisions on the website record that the parties have settled matters, without saying what the terms of the settlement are.
Therefore, at some point, once a claim has been started, there will be a tribunal decision to end the proceedings, at which point some information in connection with those proceedings will be made public.
There are limited circumstances in which names of parties can be permanently anonymised (e.g. where there are allegations of sexual offences against an individual). This is a complicated area but, in very broad terms, tribunals have not shown themselves particularly keen to make such permanent privacy orders.
In addition to the searches that can be undertaken on the website itself, search engines, such as Google, will also return decisions in the database. Under the ‘right to be forgotten’, employers or employees could make an application to search engines to have such results removed. In our opinion, this would be unlikely to be successful as it would be hard to argue that such results are outdated or irrelevant, at least for the time being.
The most obvious impact on employers is that prospective or current employees could search for an employer in the database, and gain access to decisions relating to claims against that employer. In addition to this, journalists or competitors could carry out similar searches in the hope of finding commercially sensitive information which has been recorded in any judgment. One possible effect of this could be that employers seek to settle claims before proceedings are issued in order to restrict the amount of information available online. Greater emphasis will be placed by legal advisors on whether the disclosure of sensitive information to the other side can be resisted or restricted.
The danger for employees is that a search of their name is likely to bring up any Employment Tribunal decisions in which they were a claimant; certainly a search on the government website itself would do so. The practical consequences may be that individuals who have previously brought claims against their employer will not make it through to a shortlist or interview stage. Whilst, in theory, an employee might have legal redress, it is difficult to see how this would apply in practice. An employee, for example, who had claimed unlawful discrimination against the previous employer, would potentially have a claim for victimisation if he or she was denied a job at another employer because of the existence of a discrimination claim in their past. However, if the individuals are weeded out at an early stage in the selection process, it is going to be very difficult for the job applicant to prove that the reason they were rejected was to do with their previous tribunal claim. Employers would be within their rights not to offer an applicant a job based on a prior unfair dismissal claim that the applicant had made, as this would be deemed to be non-discriminatory.
Finally, in some cases, claimant lawyers bring claims on behalf of claimants against the company and also against senior employees who were involved in the alleged detriment imposed on the claimant. In a dismissal claim, where it is alleged that an individual is dismissed on discriminatory grounds, it is not unusual to find that those who took the decision to dismiss are named as individual defendants. Their names too will be on the public record, when the case is dismissed, as having been defendants in a discrimination claim. This is, of course, likely to encourage claimant lawyers to make such additional claims, since it will, in many cases, be felt to turn up the pressure on employers.