Employment tribunal judgments and written reasons have been published online since February 2017. The publication of such judgments is likely to be a key consideration when deciding, in the case of a employee, whether to litigate and in the case of both the employee and employer, the approach to be taken to litigation. This is because the online publication of judgments inevitably gives rise to concerns regarding reputational damage or the risk of being perceived as a ‘troublemaker’.
The principle of open justice is a fundamental aspect of the rule of law and is designed to ensure transparency. Therefore, derogations from this right can only be justified in limited circumstances, such as where it is a matter of national security.
When considering whether to restrict the reporting of a judgment or to grant anonymity, a tribunal must give full weight to the principle of open justice and to the right to freedom of expression.
What does a tribunal have to consider?
The recent case of Ameyaw v Price Waterhouse Coopers Services Limited explores the question of whether a tribunal can order the removal of a judgment from the online public record.
Mss Ameyaw was employed by PricewaterhouseCoopers Services Limited (‘PWC’) as a senior manager. She had brought claims against her employer. PWC applied to strike out her claims, relying on her conduct which it argued was scandalous and vexatious. Her strike out application was dismissed at a preliminary hearing (a short hearing to determine the application) and the judgment confirming the refusal of her application, which cited her conduct appeared online.
Following the dismissal of her claims at a final hearing, Ms Ameyaw applied to the tribunal for an order that the strike out judgment and the final hearing judgment be removed from the public record or, alternatively for an anonymity order. Her application was refused.
Ms Ameyaw appealed to the employment appeal tribunal (EAT). She argued that the presence of the judgment online had resulted in her being prevented from securing alternative employment and was a breach of her right to respect for private and family life under Article 8 of the European Convention on Human Rights.
The EAT held that the tribunal was entitled to find, on the facts, that Ms Ameyaw’s right to privacy was not outweighed by the principle of open justice and the right to freedom of expression. The fact that the “record of proceedings, published without restriction, might be ‘painful, humiliating, or deterrent’ would not, of itself, mean that it should not be made public”.
How can you avoid the tribunal judgment going online?
The short answer is, you can’t.
You can apply for an order under Rule 50 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) to restrict the reporting or anonymise the judgment but the tribunal will only make such an order in limited circumstances. The tribunal does not have discretion to order that judgments should not be published online.
The best option will be to consider whether you can avoid the case being heard by the tribunal by exploring the possibility of settlement. This can be achieved using different methods and can include agreeing not just financial terms but crucially, obligations regarding confidentiality.
If you have issued a tribunal claim or you have had a tribunal claim issued against you and you wish to obtain advice on your options, please don’t hesitate to contact us.
This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.