The use of embarrassing material in employment disputes is a frequent threat to the reputations of businesses and affected individuals, often the reputation threat alone of public reporting prompts businesses to pay their way out of otherwise defendable claims.
However revisions included in this summer’s changes to Employment Tribunal procedure suggest that Tribunals will have greater power and flexibility to diminish the threat posed by ‘ransom’ allegations included in employment claims.
A typical example of such tactics will involve making lurid claims about a senior executive's behaviour, personal life or beliefs, in the expectation that the threat of publicity will likely persuade the business to pay out of a claim. As with similar tactics of making false claims against the business to seek whistleblowing status, and then draw publicity to the claim, such tactics have made employment disputes a growing area of reputation concern requiring specialist handling.
Alongside numerous procedures to better deal with vexatious claims and strike out irrelevant parts of proceedings, the new rule 50 to the Employment Tribunal regulations crystallises previous rules to allow for wider reporting restrictions, hearings held in private and the prevent the disclosure of names by anonymising the proceedings in certain circumstances. The Tribunal will consider these steps where the “interest of justice” or “Convention rights” of others are engaged, including the privacy of others involved in the dispute.
Of course, distinguishing spurious allegations from legitimate grievances requires careful scrutiny, as will the balancing of such protection against the presumption in favour of open justice. As always, much will lie in the interpretation and implementation of the rules and, of its own, the change does not draw the reputation sting from Tribunal proceedings. But allowing the Tribunal to balance privacy rights against free expression, as we have seen in family proceedings and disputes over private information, will at least give businesses an alternative option to the chequebook when rogue claims are made.