Can a claimant insist that an employment tribunal judgment is removed from the online public record?
The recent case of Ameyaw v Price Waterhouse Coopers Services Ltd has served as a useful reminder that the tribunal can only exclude a judgment from…
Since February 2017, all employment tribunal judgments (including all judgments issued after that date and some earlier decisions) and written reasons entered on the public register have been published online.
Rule 50 of the Employment Rules of Procedure 2013 (‘ET Rules’) gives the tribunal power to make a privacy or restricted reporting order; whereby a decision can be anonymised or the reasons can be given in a redacted form. When exercising this power the tribunal must “give full weight to the principle of open justice and to the Convention right to freedom of expression”.
The recent case of Ameyaw v Price Waterhouse Coopers Services Ltd has served as a useful reminder that the tribunal can only exclude a judgment from the register in very limited circumstances, such as when there are national security issues (Rule 94 of the Tribunal Rules).
In Ameyaw, the EAT upheld the employment tribunal’s decision not to grant an anonymity order or restriction under Rule 50 of the ET Rules.
Ms Ameyaw had brought previous tribunal proceedings against her employer, PricewaterhouseCoopers Services Ltd (‘PWC’), and PWC had applied to strike these claims out following Ms Ameyaw’s alleged “scandalous and vexatious conduct". This matter was considered at a public preliminary hearing and, although the claims were not struck out, Ms Ameyaw’s conduct had been criticised in the judgment.
Ms Ameyaw later applied for the strike-out judgment to be anonymised or removed from the public register, where it had been entered over a year before. Ms Ameyaw claimed that the online publication of the judgment had prevented her from securing new employment (as well as contending that her rights under Articles 6 and 8 of the European Convention of Human Rights were breached when a Judgment which she argued contained defamatory and incorrect statements had been published without a trial of the facts). The application was refused on the basis that the tribunal had no discretion not to publish the judgment and Rule 50 did not provide any basis to override the principle of open justice.
Ms Ameyaw appealed and claimed that the online publication of the judgment breached her right to privacy under Article 8 of the European Convention of Human Rights (‘ECHR’).
The EAT decision
The EAT rejected this argument. It held that the employment tribunal was entitled to find that the claimant’s right to privacy under Article 8 of the ECHR did not outweigh the Article 6 and 10 rights to a free trial (with a publicly pronounced judgment) and freedom of expression. Crucially, the tribunal reasoned that Ms Ameyaw could have no expectation of privacy in respect of what had happened at a public preliminary hearing, despite “the fact that the record of the proceedings, published without restriction, might be ‘painful, humiliating, or deterrent’”.
Is there a ‘right to removal’?
So, can a claimant insist that a judgment can be removed from the public record? In short, unless the case concerns a matter of national security, the judgment will be published on the register and this means that a permanent record of the judgment will exist online. The tribunal has no power to remove a judgment in its totality from the register.
It is important for parties to bear this in mind when considering their approach to litigation, especially if there is any concern over a matter becoming public for either party. Judgments are easily accessible, not only directly via the online register but also simply via a Google search of a claimant’s name or the name of the respondent. As such, not only could future employers have access to such decisions but so could prospective employees. The publication of employment tribunal judgments in line with the principle of ‘open justice’ inevitably carries a heightened risk of reputational damage for employers.
Whilst, in this case, the EAT took the view that Ms Ameyaw’s right to privacy was outweighed by the principle of open justice, all cases depend on their own facts. There may be future cases that are not quite so clear-cut and the employment tribunals will need to balance competing rights under the ECHR on a case by case basis. That said, given the importance attached to the fundamental principle of open justice by the courts and tribunals, it is difficult to envisage the circumstances in which the wishes of an individual claimant or respondent would be found to override this.
Practically, therefore, the only way to certainly avoid details of an employment claim becoming public is to avoid the matter being decided at an employment tribunal hearing. Take advice at the outset of a matter to understand what preventative or alternative steps can be taken (e.g. mediation or settlement) and what scope there is to avoid a public hearing and any judgment being published online. In the event of settlement, it is important to make sure that appropriate confidentiality provisions are included in any agreement to protect the positions of all those involved.