It was not that long ago that the Ministry of Justice told us it would be ditching its copies of old employment tribunal judgments. From the Autumn 2016, it seems that judgments are going to be available online for all to see. Presumably the service will be similar to that offered by the Employment Appeal Tribunal for some years.
Regulation 14 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 places an obligation on the Lord Chancellor to retain copies of employment tribunal judgments. Currently they are available to view in person in Bury St Edmunds (or Glasgow for Scottish Judgments), or available by post for a relatively small fee.
The changes announced will apply to new judgments only. There are no plans to make historic judgments available online- at least at the moment.
One might wonder why judgments should be so widely available. They do not set legal precedent, and in many if not most cases are very fact sensitive. Having said that, there are likely to be consequences for litigants- and in particular employers. It is suggested that in many cases a wise representative should bring these to the attention of clients at an early stage.
We already see journalists at some trials. They seek out the juicy cases- presumably working either on tip-offs, or by decoding the claim type codes on the hearings lists. Sitting through a hearing of a week or more must represent a considerable investment in time. Whilst there would be nothing to stop a local journalist visiting the office at Bury St Edmunds to hunt out cases from his or her locality, for most of the country, geography makes that unattractive. A quick search from the office is a different proposition. There may be a delay between handing down the judgment and publication online, but in most cases, if it has not been reported elsewhere, the story will remain newsworthy.
Judgments will be readily available for other employees to download. It is difficult to keep tribunal proceedings a secret from other employees, but easier to keep the detail from them. It would be a very bold employee who took holiday to sit at the back of the hearing. From the Autumn any curious employee will be able to download a blow by blow summary of the proceedings. In the age of email and social media, details can be quickly shared.
As the database gets bigger, claimant representatives may be inclined to make a quick search to see if they can find details of earlier, similar cases against the same employer. Potentially they may get useful information about the way the management works, how employer witnesses are likely to come across, and the like.
Potential purchasers of an employer’s business, or substantial investors, may feel a quick search sensible as part of their due diligence enquiries.
How can a party avoid the publicity? In an appropriate case a party can seek an order under rule 50, to secure anonymity or non-publication. In most cases these are difficult orders to get. If they may be available, the need to raise the issue with clients will be all the more important. Where they are not available, parties can only really avoid publicity by compromising their dispute before judgment is handed down. In some cases it may be worth considering an early settlement to avoid the risk of having to air dirty washing in public.