Recent headlines surrounding NDAs and their alleged misuse in ‘silencing’ employees have raised questions around the legitimacy of such agreements. The Philip Green case is an example of how employees are becoming more forthcoming in reporting inappropriate behaviour in the workplace, even when the individual in question is at the most senior level.
With this changing attitude increased awareness around the reputation of employers has followed, and the new online tribunal claims database is the latest in a series of significant developments employers should bear in mind. With the number of claims being added to the database rising and scrutiny over employers’ conduct increasing, an understanding of how the system works can be invaluable.
What does online publication mean for both employers and employees?
The online database captures tribunal decisions where cases have proceeded to a full hearing, as well as judgements where claims are settled or withdrawn. This means that even if claims are resolved ‘out of court’ a record of that claim will be online for all to see. For employers the risk to reputation lies in the database serving as a publicly-available archive of claims brought against them. Both current and prospective employees can access and use this to gauge the credibility of an employer.
The content and scope of information captured on the database extends beyond merely the name of the company and the employee; a judgement will be listed with details such as date of judgement, tribunal location, and the ‘jurisdiction code’ which identifies the type of claim (e.g. unfair dismissal, sexual harassment, discrimination, unlawful deduction from wages, etc). This means that anyone can see who has made a claim, the nature of the claim, and the organisation against which it was made. Employees seeing details such as those in the case of Philip Green would be particularly harmful to an employer’s reputation.
Furthermore, there is inconsistency around what other information appears on the database where claims are withdrawn or settled. Regional variation in the information recorded results in a 'postcode lottery' – with some withdrawal judgements on the database stating that a settlement was reached, some including the amount paid, and others even stating whether apologies were given by the employer.
All these details can influence public perceptions of an organisation and, on a more practical level, can afford advantages to disgruntled employees in deciding whether and how to approach bringing a claim. With scrutiny over employers’ misconduct continuing to grow, there seems to be less to lose for employees in launching a claim, with more at stake for employers.
That said, there are also dangers for employees. Future employers and recruiters may locate candidates via the database, which could mean that an employee effectively starts off 'on the wrong foot' with prospective employers because of their previous claims.
This initial impression may be even further damaged where it appears that their previous claim was brought without merit, or there was some criticism of their conduct in written reasons given by the tribunal. In instances like these the current climate of high-profile cases that seem to encourage employees to report and take action in relation to misconduct could end up working against the employees involved.
Exceptions to the rule
Despite details of claims generally being captured on the database, even where settled or withdrawn, tribunals do have the power to make an order preventing or restricting the public disclosure of proceedings where necessary in the interests of justice, national security or to protect any person’s rights under the Human Rights Act. These protected rights are commonly privacy and the right to a private and family life, and such reporting restrictions are usually put into place where the matter is of a sensitive nature.
In a recent case, a claimant brought tribunal proceedings against her employer and the judgement – and a full written decision – were entered onto the online database. After an appeal from the claimant to remove both documents from the database she asked for anonymisation, saying the documents had stopped her finding alternative employment and had breached her rights under Article 8 of the Human Rights Act.
The employment appeal tribunal found that the original decision had been correct and that the principle of open justice required hearings to be public and that judgements were made publicly available. It was found that the tribunal’s discretion to anonymise in cases concerning more sensitive elements was wide but would rarely provide for a complete restriction. With regards to the claimant’s request for anonymisation, the strike-out hearing had been in public and therefore the claimant had no expectation of privacy.
What can employers and employees learn?
This decision makes it clear that, despite the potential impact on future employment, all judgements and accompanying written reasons must be published online. Where an employee or employer is concerned about such issues they should apply for a restricted reporting order or anonymisation at the earliest opportunity.
Both parties should also bear in mind that either of them has the right to request written reasons for the decision and that these will also be published in addition to the judgement itself. Such requests may cause further details of any claim made or conduct cited to come to light, which could cause further embarrassment. With more high-profile cases on NDA and settlement agreement use likely to come, employers can learn important lessons from past cases and seek to understand how the database works in order to avoid undue risk to their reputation. With the right legal advice employers can ‘control the narrative’ in terms of what appears on the database where a claim is settled.
David Greenhalgh is an employment partner at London law firm Joelson