The Court of Appeal has ruled that, the powers of an Employment Tribunal to restrict publicity in relation to Tribunal proceedings do not extend to preventing judgments being published on the Register (making them searchable online) except in national security cases. Although the Court did not entirely rule out prevention of publication in other cases, they could not imagine the circumstances which would justify it. The Court also rejected the Claimant's application to redact the Tribunal judgment so as not to refer to his disabilities and their effects, as that would prevent a reader from understanding the judgment. This decision illustrates the limitations on keeping proceedings confidential.
Tribunal hearings - other than preliminary hearings to determine procedural matters - are generally public hearings which can be freely reported. In addition, Tribunal judgments and the written reasons for them must generally be entered on a public register. Since February 2017, judgments have been entered onto an online database, making them searchable online.
However, the Tribunal has wide ranging powers to limit publicity in the interests of national security. It also has a general power to restrict publicity where this is necessary in the interests of justice or to protect rights under the European Convention of Human Rights (ECHR) and to make restrictions in certain cases involving confidential information. When exercising these powers the Tribunal must give full weight to the principle of open justice and the ECHR right to freedom of expression.
The Claimant in this case had brought proceedings for disability discrimination. The Employment Tribunal had granted the Claimant's applications to hold the Tribunal hearing in private, for the names of the parties and witnesses to be anonymised, and for its judgment not be placed on the register. This was on the basis that there was medical evidence that the Claimant was suffering from an adjustment disorder as a result of anxiety about the claim, was self-conscious and embarrassed about the manifestations of his disabilities in the hearing and might not feel able to go ahead with his claim if the restrictions were not made.
On appeal, the EAT upheld the Tribunal's orders of preventing identification of the parties and witnesses and granting anonymization. However, the EAT set aside the order that the Tribunal judgment would not be placed on the Register. It also rejected a new request by the Claimant that both the Tribunal and EAT judgments would be further redacted, to anonymise the Claimant's disabilities and remove descriptions of the effect those disabilities, including reference to a particular "disturbing" incident. The Claimant appealed against both these decisions, arguing that the orders were necessary to protect his right to respect for private and family life under the ECHR.
Court of Appeal Decision
The Court of Appeal agreed with the EAT. There is no explicit power for employment tribunals to prevent publication of their judgments and reasons in the Register, except where there are national security concerns. The fact that the Claimant might be so embarrassed about the prospect of a public hearing or a public judgment that he would not proceed with the claim, did not outweigh the principle of open justice. The Court also acknowledged that granting the Claimant's application would give rise to practical difficulties as, from a matter of elementary justice, the individuals accused of discrimination in the case must be allowed to see the judgment and would also be able to freely discuss the judgment with their colleagues without being held to be in contempt of court.
The Court did not go so far as to say there will never be a case (other than one concerning national security) in which a Tribunal judgment can be kept secret by not being published on the Register but it was unable to imagine under what circumstances that that would be appropriate.
The Court also agreed with the EAT's refusal to order further redaction of the Tribunal and EAT's judgment as that would fundamentally undermine understanding of the judgment.
The risk of publicity from Tribunal proceedings - both at the hearing and as a result of the judgment being permanently available online - can be a deterrent for both parties to proceed to a full hearing. This case illustrates the limits of the Tribunal's powers to prevent publicity where a claim proceeds. Although the Court of Appeal did not have to consider the Tribunal's orders for a private hearing or anonymity, they expressed very serious doubts about whether the decision to conduct the hearing in private was correct.
L v Q Ltd, Court of Appeal