Since 2017 Employment Tribunal decisions are placed online. Names of claimants (and others) may therefore show up on internet searches by a prospective employer. Claimants (or indeed employers) may wish to try and obtain an anonymity order, so that names do not appear on the internet.
The online database
Since February 2017 employment tribunal decisions are published online at www.gov.uk/employment-tribunal-decisions . Some pre-2017 decisions have also been published there.
These decisions show up in searches on Google and other search engines. An employer may not be looking particularly for a tribunal decision – the employer may just search for a job applicant’s name and perhaps previous employer (as shown on a CV) and the tribunal decision pops up in the search results.
An employer may be put off from employing someone simply because they have previously brought a claim. This would be unlawful victimisation by the prospective employer contrary to the Equality Act, if it was an Equality Act claim. However proving this was the reason for rejecting a job applicant will typically be difficult.
The employer (and the general public) will also have access to whatever details of the claimant’s disability are in the previous tribunal decision. This is despite s.60 EqA which generally prohibits questions about health and disability before a job offer. The employer will also be able to see whatever allegations were made by the parties about the other’s conduct, and the tribunal’s decision on the allegations, including whose evidence the tribunal believed.
These details will of course be available not only to employers but also to anyone else who cares to google a person’s details.
This is not just an issue for claimants. For example a manager or HR professional may be criticised by the tribunal, and this may pop up if anyone (including a prospective employer) in future searches that individual’s name.
How likely someone is to show up in search results will depend. Eg ‘John Smith’ who worked at Barclays Bank is less likely to show high in search results than someone with an unusual name or who worked at a small organisation.
Effect on bringing cases
There is a clear danger that the prospect of the tribunal decision being published will deter claimants from bringing cases – at least claimants who know about the online database.
Most claimants who are not professionally advised will not know about the database. They may find out too late about details of their case being available and searchable online.
The previous system was that hard copy tribunal decisions were available at Bury St Edmunds (BIALL How do I wiki – Employment tribunal cases). However the decisions could not be searched online and – although accessible to the public – in practice they were not likely to be publicised unless there was some unusual public interest in them.
If you are concerned about any decision by the tribunal going online, it is worth considering the possibility of anonymity order or similar.
Anonymity orders etc
These are covered by Rule 50 of the Employment Tribunal Rules (gov.uk), headed ‘Privacy and restrictions on disclosure’. A range of orders may be made, not just anonymity orders. However for example Rule 50(3)(b) permits an “order that the identity of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise….”.
It is not necessarily easy to get such an order. Three competing rights under the European Human Rights Convention have to be balanced: the Article 6 right to a fair hearing with a publicly pronounced judgment, the Article 8 right to respect for private and family life, and the Article 10 right to freedom of expression. The claimant is likely to be arguing that their Article 8 right trumps the other two. The courts have basically said they have to look at the circumstances and balance the rights in the particular case, and proportionality is important:
“… What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.
In re S (FC) (a child) (bailii.org), 2004, House of Lords at para 17. This case was on Articles 8 and 10.
In BBC v Roden (bailii.org), 2015, the EAT set a high bar for those seeking an anonymity order, saying ‘The principle of open justice [Article 6] is accordingly of paramount importance and derogations from it can only be justified when strictly necessary as measured to secure the proper administration of justice.’ On the other hand in EF v AB (bailii.org), 2015, the EAT seems to have approached the balancing exercise more by asking whether there is a substantial Article 8 right to be protected and, if so, why a permanent anonymity order should not be made (Harvey on Industrial Relations and Employment Law, para 958.02, Issue 256).
The position was discussed at some length by the EAT from para 49 in Fallows v News Groups Newspapers (bailii.org), 2016. The following from the EAT decision in Ameyaw, 2019, is part of what was described as a “helpful analysis” by the Court of Appeal in L v Q Ltd (bailii.org):
“48. Should the ET be satisfied that an Article 8 right [private life] is engaged, however, in exercising its discretion under Rule 50 it will need to consider whether the interests of the owner of that right should yield to the broader interests established by the rights afforded by Articles 6 [open justice] and 10 [freedom of expression]. In carrying out the balancing exercise thus required, the ET will be guided by the following principles derived from the case-law… : (i) the burden of establishing any derogation from the fundamental principle of open justice or full reporting lies on the person seeking that derogation; (ii) it must be established by clear and cogent evidence that harm will be done by reporting to the privacy rights of the person seeking the restriction on full reporting so as to make it necessary to derogate from the principle of open justice; (iii) where full reporting of proceedings is unlikely to indicate whether a damaging allegation is true or false, the ET should credit the public with the ability to understand that unproven allegations are no more than that; and (iv) where such a case proceeds to judgment, the ET can mitigate the risk of misunderstanding by making clear it has not adjudicated on the truth or otherwise of the damaging allegations.”
Ameyaw v PriceWaterhouseCoopers Services (bailii.org), EAT, 2019. ‘ET’ means Employment Tribunal.
A claimant seeking an anonymity order will want to show that his or her right to privacy and family life under Article 8 is engaged, and to bring ‘clear and cogent’ evidence of the harm of not granting an order, so as to make it necessary to derogate from the principle of open justice. As well as a statement from the claimant, this might include a statement from family members, and perhaps a doctor and/or a speech and language therapist as to the effect of publication of the judgment.
If the claimant would not proceed with the claim without an anonymity order, it may well be worth saying this. If the claimant is deterred from bringing the claim, they are being denied their rights. This could be an important factor, especially in the light of principles such as the EU requirement of ‘effectiveness’.
The fact that judgments are now published online may perhaps be relevant in deciding whether an anonymity order should be granted. In F v G (bailii.org), 2011, the EAT said: “The nature and manner of publication of information relating to a person’s private life must be relevant to whether his rights under article 8 are infringed by the publication and if so whether such infringement can be justified.”
Another recent case is interesting on various points, including whether the tribunal should consider an anonymity order even though one has not been requested, the possibility of applying for an order made soon after the judgment is given, and considering on the particular facts how important Articles 6 and 10 are:
X v Y, EAT, 2019
An employment tribunal decision referred to the claimant’s transgender status and sensitive issues on his mental health. At the time of the hearing the claimant, represented by his father, had not sought anonymisation or redaction of the judgment. However 10 days after the judgment was sent to the parties, the claimant asked for sensitive passages to be “redacted” (ie deleted) from the judgment.
The EAT refused to redact the judgment. However it held this was a rare case in which the tribunal should have considered of its own volition whether an anonymity order should be made, even though the claimant had not requested it at the time of the hearing. In any event, said the EAT, the claimant was still entitled to apply for an anonymity order at the time he did.
The EAT held the claimant’s name in the judgment should now be anonymised. The claimant’s Article 8 rights to privacy in this case far outweighed the very limited impact which anonymisation would have on the Article 6 principle of open justice. Moreover, this case involving a time limit issue was not one in which Article 10 rights of freedom of expression were significantly engaged.
The EAT also considered case law more generally. During the course of this it said that despite a comment in Ameyaw (above), Article 8 can be engaged and in an appropriate case a Rule 50 order made even in cases where the sensitive information has been given in evidence at an open hearing.
As to whether an employment tribunal judgment can be not published at all, rather than just anonymised, the Court of Appeal in L v Q Ltd (bailii.org), 2019 found it hard to imagine circumstances in which non-publication would be right (apart from national security). The court also refused to anonymise the claimant’s disabilities by calling them “Condition A” and “Condition B”. Names had already been anonymised.
Why is open justice important?
‘The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? … In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said … “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial”.’
EAT in Ameyaw v Pricewaterhousecoopers Services (gov.uk) 2019, quoting from the Court of Appeal in R (Guardian News & Media Ltd) v Westminster Magistrates Court (bailii.org), 2012.
See also the Court of Appeal in L v Q Ltd (bailii.org), 2019, at para 19.
- Litigants anonymous: the tribunal database and anonymity, by Emily Gordon Walker and Gus Baker, Outer Temple Chambers, which considers applying for anonymity orders in more detail. May 2017. Linked from www.outertemple.com/2017/05/tribunal-database-anonymity/
Names on this website
Employment tribunal decisions
On this stammeringlaw website, I currently only give the first letter of surnames in stammering cases which did not go beyond the employment tribunal. Of course decisions since 2017 (and some before then) will still appear on the gov.uk website, and will show up in Google search results pointing to the gov.uk website accordingly.
Any non-stammering employment tribunal decisions on this website typically appear in multiple places on the internet anyway, so I do include the full surname there but no further names.
Employment Appeal Tribunal decisions (and decisions of higher courts) are rather different in that they routinely appear on numerous websites, and so show up on internet searches. This has been the position for years.