HM Courts & Tribunals Service (HMCTS) has recently launched an online database of employment tribunal decisions in a move that is intended to facilitate "open justice" - https://www.gov.uk/employment-tribunal-decisions.
Employers will now be able to search for the names of prospective and current employees to see whether they have brought any claims against previous employers. Decisions can be searched for by date range or by type of claim, and there is also a general search facility which can be used to search by name (although this might be difficult with a common name).
There are some judgments from 2015 available, but the majority are from 2016-2017. It is HMCTS’s intention that all employment tribunal judgments will be published on the database going forward.
1. How will this affect employees?
Employers may use the database search as part of their recruitment processes, for example. What an employer then does with any information that it finds is another matter. Choosing not to offer employment to someone who has sued their former employer is a difficult decision: clearly not all claimants will be vexatious litigants. Those individuals with a genuine claim should be able to bring proceedings against their employer without being concerned that this will create a stigma and harm their future employment prospects. However, many would-be claimants may fear that this will no longer be the case.
Equally, job applicants and employees will be able to search for claims involving their (prospective) employer. There are reputational risks to employers as a result of published judgments. Might this give employers further incentive to settle claims, even where they think they have a strong defence?
2. Do employers risk facing victimisation claims?
Claimants have successfully argued in the past that they have been victimised by their new or prospective employer for bringing discrimination proceedings against their former employer.
Whilst a claimant faces a considerable evidential burden in succeeding with such a claim (and many claimants may not be aware of their right to bring such a claim in any event), the online database will certainly facilitate access to information which was not previously so readily available.
3. What are the impacts of the system?
Along with increased tribunal fees, is this just another incentive for employees not to bring a tribunal claim? Will employers now face a heightened risk of adverse publicity arising from tribunal proceedings? Will increased exposure make settlements more likely?
The online database was a proposed move towards a more open justice system. For now we can only speculate on the implications of the system. It will take time before we see if claim numbers are reduced and negotiated settlements rise