The online database of employment tribunal judgments announced some time ago is now being populated with significant amounts of material. Users can now search employment tribunal judgments in England, Wales and Scotland by reference to the parties to proceedings, date ranges and specific types of claim – for example, unfair dismissal or discrimination – or even decisions made by specific employment judges. The search function applies to the text of the judgments contained in the database so it can be used to identify cases involving a type of issue – for example, a search could check for cases about theft or personality disorders – or indeed specific individuals whether as witnesses or otherwise. Users can also sign up for an email alerter.
The database may be useful in demonstrating how particular issues are determined. But it also has potentially important consequences for both employers and employees. Concern has been expressed that the database will lead to employers being able to vet or even blacklist potential recruits by reference to whether they have brought claims.
That said, vetting by reference to the tribunal judgment database could open employers to claims of victimisation under the Equality Act 2010 if it is shown that a decision not to employ a candidate was taken because the individual had brought or might bring a discrimination claim. To use the database as part of an employer’s recruitment process would also contravene the Information Commissioner’s Guidance on screening of applicants for employment and therefore potentially breach the Data Protection Act 1998.
The parties to tribunal proceedings may be concerned about possible reputational damage, especially since full detail of the claim, even if unsuccessful, will be available where written reasons are given for the tribunal’s judgment. Sensitive and personal matters may end up being recorded publicly.
More specifically, employers and employees need also to appreciate that the publication of judgments online means that their ability to maintain confidentiality of tribunal proceedings is now potentially limited in two particular ways.
First, the publication of judgments does mean that the detail of ongoing tribunal proceedings can become public before the final merits hearing, which decides the case in circumstances where a judgment is made on a preliminary issue. Examples of judgments on preliminary issues which may to a greater or lesser extent address the subject matter of a claim, will include the resolution of whether a claimant has a disability for the purposes of the Equality Act 2010 and whether a claim has been brought in time.
Secondly, the parties’ ability to ensure confidentiality when settling claims is compromised. Provisions in settlement agreements may require the parties to keep the fact that a claim was brought confidential, in addition to the subject matter of the claim and the relevant settlement terms. The employer will also usually wish the employee to formally withdraw the claim in order to bring the matter to an end and ensure that the issues in question cannot be relitigated in future.
The introduction of the database means that, where tribunal proceedings have started and are then settled with the claimant withdrawing the claim, the formal judgment dismissing the proceedings following that withdrawal will be public. Moreover, the details made public on the database include the relevant jurisdiction code, so it will be possible to identify the sort of claim made, if not its detail, where a claim is withdrawn and a dismissal judgment issued. The fact that withdrawal followed a settlement may even be recorded in the judgment itself, where ACAS has assisted in the settlement of proceedings under a COT3.
Employers and employees alike will therefore need to be mindful of the potential impact of judgments being available online- on their approach towards litigation and in particular the timing and terms of settlement of employment disputes. So the tribunal judgment database should not be ignored.
Charles Wynn-Evans is partner at Dechert