Since 2017 Employment Tribunal decisions are placed online, so names of claimants (and others) may 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 . There are also some pre-2017 decisions published there.
These decisions show up in searches on Google etc. 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 under 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, 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 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, ‘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 rights 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) (link to bailii.org), 2004, House of Lords at para 17. That case was on Article 8 and Article 10.
It is not known what approach the tribunals will take now the online database is available. However the database should tip the balance somewhat in favour of an anonymity order. In F v G (link to employmentcasesupdate.co.uk), 2012, 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.’
In BBC v Roden (link to 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 (link to 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).
A claimant seeking an anonymity order will want to try and 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, to justify derogating from the public interest in full publication of the judgment (para 43 of BBC v Roden (link to bailii.org)). 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’.
- 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
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 will still appear on the gov.uk website, and will show up in Google search results 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.