“A lack of transparency results in distrust and a deep sense of insecurity” - the Dalai Lama
It is not often that quotes from the head monk of Tibetan Buddhism appear in employment law bulletins. However, given the content of this month’s article the quotation seems more than appropriate.
It is perhaps fitting, that in this era of fake news and media attacks on our judiciary as “enemies of the people”, that courts and tribunals are undertaking unprecedented measures in transparency. From allowing live video footage in court rooms to the introduction of live tweeting during hearings, the once dark and mysterious courts and tribunal services, have slowly started opening up to the public.
In February 2017, the Employment Tribunals, via Her Majesty’s Court and Tribunals Service (HMCTS), continued the trend of transparency by providing online access to all judgments handed down throughout the UK. The website (which can be accessed by following the link at the bottom of this bulletin) allows anyone to search for claims using the free search feature which can include the name of the respondent, the claimant, a witness name or by the type of case. This transparency is a significant step forward by HMCTS, who previously required that you either turn up to Bury St Edmunds tribunal and manually search for a judgment, or alternatively pay a fee to have someone search for and send a copy to you.
With this new ease of access to employment tribunal judgments being introduced, you would think that universal praise would be heaped upon HMCTS. So why have concerns been raised throughout the legal profession to such transparency? The answer affects both employees and employers in equal measures.
- Commercially sensitive information such as details of company handbooks, contracts and bonus schemes are often cited within an Employment Tribunal judgment itself. This is clearly information which employers would rather not appear in the public domain. However, without any option for redaction of such information, employers will have no choice but to allow their wares to be aired in full view of the general public and their competitors.
- Employers may also suffer a detriment should future claimants attempt to use evidence of previous claims as a means of showing a particular behaviour pattern within a business. For example this may include a history of race or sex discrimination within the business itself or even discriminatory behaviours specific to an individual employed by a company. It is yet to be seen how a tribunal will treat such a request to produce previous cases as evidence, and it should be noted that employment tribunals do not bind each other with their judgments.
- Owing to ever more restricted financial budgets of local media organisations, it is nowadays uncommon for the press to report on employment tribunal cases. Indeed, over the past 4 or 5 years only a handful of tribunal cases have been picked up by the media, with all but the highest profile cases being ignored. This may change in the future with online access to judgments allowing easy reproduction of cases, which may in turn lead to a greater risk of adverse publicity, especially for SMEs.
- It has been estimated that approximately 60% of employers search social network sites during the recruitment process for new employees. The practice, which we highly advise our clients against, could now extend to employers undertaking a search of the employment tribunal judgment database prior to an appointment. Whether an employer would be swayed by a historic employment tribunal claim brought by a future recruit is debatable. However, although an employee shouldn’t be able to bring a ‘standard’ unfair dismissal if they are dismissed once an employer knows about a previous Tribunal claim they brought they may, depending on the facts of each case, have the option to claim a form of discrimination victimisation under the Equality Act 2010 where no minimum service is required.
- It is anticipated that search results from the tribunal website will soon start to appear on a Google search. It is not unlikely, therefore, that a claimant’s name could appear on the front page of Google should a third party be “researching” an individual. There is of course “the right to be forgotten” which our colleagues in the Commercial team very expertly covered in this previous bulletin. This may come in very handy should you ever require a search result referring to you to be removed from Google.
At the time of writing HMCTS have yet to clarify if they intend to upload all historic claims to the database. Currently there are around 150 cases on the database with the oldest one dated 13 May 2015 and the most recent dated 10 February 2017. The number of cases is expected to increase dramatically as the database gets updated in the coming weeks.
It is worth noting that in addition to full judgments, preliminary hearing judgments and claim dismissals are also available on the database. This means that, even if a claim is settled prior to hearing, the names of the parties will still be publicly available.
The question remains therefore, despite the Dalai Lama’s famous quote, will such transparency in the theatre of employment law resolve issues of distrust and insecurity, or will it lead to further suspicion between employers and employees?
What should you be doing now?
Following the launch of the database all employers should be aware of the increased risk of adverse publicity if a claim is brought against the company. If they have one, an employer’s PR department or consultant should be made aware of the possible negative impact on a business going forward.
Senior management should be made aware of any claim brought against the business and structures should be in place to deal with press enquiries and/or any publicity arising from the same. Staff should also be made aware that they are not permitted to speak to the press and any queries should be directed to the relevant department.
What does this mean for you or your business?
Whilst every case should be assessed on its own merits, it is on occasions a consideration for businesses to settle a claim prior to a tribunal hearing purely for commercial reasons. These reasons may include saving money on legal fees or settling early to avoid adverse publicity.
Given the potential risk of commercially sensitive business practices being made available to anyone with an internet connection, early settlement of a matter may now be an increased consideration for employers.
Should a claim be brought against your business, be clear with your HR team or solicitor as to the repercussions any disclosure may have on the business and ask that any advice received is tailored to the same.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.