Will an Employment Tribunal judgment always be published online?
A public register is held of all judgments and written reasons issued by Employment Tribunals. Until 2017, the judgments were kept in hard copy in Bury St Edmunds and in Glasgow. Since 2017, however, all Employment Tribunal judgments are entered onto an online database.
There are provisions which allow Tribunals to make orders preventing or restricting the public disclosure of any judgment as far as is necessary in the interests of justice, or in order to protect the rights of any individual under the European Convention on Human Rights (ECHR). In addition, written reasons of an Employment Tribunal judgment may be omitted from the register for reasons of national security.
An Employment Tribunal judgment can also be anonymised in cases involving allegations of sexual offences; or in a disability discrimination claim, where evidence of a personal nature is likely to be heard during the hearing. “Evidence of a personal nature” is defined as “any evidence of a medical, or other intimate nature which might reasonably be assumed to be likely to cause significant embarrassment to the Claimant if reported”.
In a recent case, Mr L brought claims including disability discrimination against his employers. He applied to the Employment Tribunal for orders for the hearing to be held in private; the names of the parties and witnesses to be anonymised; and that the judgment should not be placed on the register.
The Tribunal considered the principle of open justice. However, it took into account the medical evidence that Mr L was experiencing adjustment disorder, as well as other disabilities, as a result of anxiety about the Tribunal Claim; evidence that Mr L was self-conscious and embarrassed about the manifestations of his disabilities in the hearing; and that he was considering withdrawing his claims if the orders were not made. It granted Mr L’s applications.
After the hearing, the employer appealed on a number of points, including the order that the judgment would not go on the register. The Employment Appeal Tribunal found that the judgment should be on the register and directed that it would be redacted to the extent necessary to preserve the anonymity of the parties and witnesses.
The issue came before the Court of Appeal (CA). It noted that there are specific powers dealing with the restrictions on publication and on public access to hearings. There is an express power to prevent publication of a judgment on the register in cases of national security. Mr L argued that the Tribunal has the power to keep its judgment secret to protect his ECHR right to privacy. However, the CA found that in this case, attempting to keep the judgment secret would be the “thin end of an enormous wedge” and was contrary to the principle of open justice.
Lord Justice Bean noted “It is unnecessary to go so far as to say that there will never be a case (other than one concerning national security) in which an ET judgment can be kept secret by not being entered on the Register. I will only say that as at present advised I find it hard to imagine the circumstances in which it would be right for an ET .. to withhold publication of a judgment altogether. If there is ever to be such a case, certainly this one is not it.”
Mr L also argued that if the judgment was published, it should be in a form which described his disabilities as “Condition A” and “Condition B”. The CA refused. It found that to redact the judgment in this way would “fundamentally undermine understanding of the .. judgment” and noted that it is “wholly unjustifiable” to have judgments censored in that way.
It is important for both employers and individuals to remember that Employment Tribunal judgments are now published online and as such are easy to search for and view. Attempts to prevent publication of the judgment on the register altogether are unlikely to succeed other than in national security cases.
We represent employers in the Employment Tribunal and advise employers on the litigation process. Contact us if you would like further information.
14 October 2019
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