Employment tribunal decisions have been made available online for over a year, but employers should exercise caution when using it to conduct checks on staff and new recruits.
We are all aware that Hearings before the Employment Tribunals, like any other court, are, on the whole, open to the public; this transparency is one of the cornerstones of our legal system. We are also used to decisions of the higher courts, such as the Employment Appeal Tribunal and Court of Appeal, being reported for us all to use as guidance on the application of the law. Traditionally there has been less interest in the first instance decisions of Employment Tribunals as they are not binding decisions for other cases. If a case does go to a Final Hearing in the Employment Tribunal there is rarely any one sitting in the public gallery scrutinising proceedings other than the witnesses in the case and the odd keen law student – however, first instance Employment Tribunal Judgments are now easily accessible on line and this perhaps shifts our approach to the management of Employment Tribunal Claims.
Written decisions of the Employment Tribunal have always been available in the archive at Bury St Edmunds Employment Tribunal, but again accessing decisions from the archive were only really used by those with an academic interest or sometimes to establish if an individual was a vexatious litigant. All decisions since February 2017, and some earlier decisions, are also easily accessible on the gov.uk website (https://www.gov.uk/employment-tribunal-decisions) and can be found via a simple google search.
How can you use it?
On the government website, there is an easy search function which enables you to find cases based on the type of law, e.g. unfair dismissal, sex discrimination and you can also search by name of the Claimant and the Respondent. There is even a function where you can subscribe to an e-mail alert if you have a particular interest in an area of law or a particular organisation.
So, what do we mean by all decisions being online? This is all final outcomes and preliminary decisions where an issue of law has been determined, e.g. whether a Claimant has a disability. It also sets when cases have been withdrawn by the Claimant or settled. So even if a case does not go to a full hearing and the parties settle the claim out of court this outcome will still be recorded as an Employment Tribunal decision and therefore will be available online.
Proceed with caution...
There will inevitably be a temptation during the recruitment process to undertake a search to see if any applicants have brought Employment Tribunal in the past. However, proceed with caution as this runs a significant risk of claims of victimisation if any less favourable treatment arises as a result e.g. if the applicant is not offered the role and seeks an explanation. In addition, if this is a step that employers are going to take during their recruitment process then this should be set out in their Privacy Notice to ensure compliance with Data Protection legislation.
The fact that decisions will be available online can also be a cause for concern for employers acting as defendants as well as individual claimants. Employment Judgments set out the facts of the case as the Employment Tribunal panel has found them, and rarely can those findings of fact be overturned on appeal. This could lead to an account of events which is not entirely accurate or favourable to a party to the litigation, including witnesses. Employment Tribunal Judgments can give very detailed accounts of the internal processes of a Respondent e.g. how a redundancy process has been carried out or how decisions about the performance management of the Claimant have been made. It will also set out how the Employment Tribunal found the evidence of witnesses, including whether their evidence was believed by the Tribunal placing a spotlight on their management decisions. Once the judgement has been issued, this will be available to all, for a long time, from just a quick online search. This inevitably means that businesses defending claims, particularly household names, can find their cases attracting media attention. Being ready and able to manage the PR fallout of such cases is important and it may even be another factor that plays into whether a commercial settlement is appropriate to avoid damaging public and employee relations.
The Employment Tribunal does have the power to restrict or prevent the public disclosure of cases if it considers it "necessary in the interests of justice" or to protect the human rights of an individual involved. This is usually considered in cases where there have been allegations of sexual misconduct or where there are security concerns. It is unlikely to be an option in most cases before the Employment Tribunal.
If a claim is settled, it also has an impact on confidentiality. Given that it will be openly on the public record that an Employment Tribunal case has settled, the wording in any settlement agreement will only be able to require the parties to keep the terms of the agreement confidential not the fact that there has been a settlement reached by the parties.
All of these are additional factors to be taken into account when deciding how to manage Employment Tribunal Claims, particularly at the point of early conciliation when parties have a window to settle a case before Employment Tribunal proceedings are brought and should be discussed at an early stage with your legal adviser.
For advice on managing any employment claims you face please contact me on [email protected] or +44 (0)1872 243339.