Employment Tribunal decisions online: resource or risk?

In a move intended to improve transparency and 'open justice', HM Courts and Tribunals Service has recently launched a new online database of Employment Tribunal decisions. This brings the rest of the UK up to speed with Northern Ireland where decisions at this level are already available online.

The webpage allows members of the public to search for first instance ET decisions from England, Wales and Scotland using drop-down menus and a free-text search.

It was originally intended that only new decisions, given after the database went live, would be published, but it appears that a selection of older judgments going back to 2015 have been included. It is not clear how these have been selected or whether further historic material will continue to be added.

Although the volume of material added to the site will make it impossible to keep on top of each and every new decision, the site enables users to filter content in lots of useful ways. For example, it is possible to identify recent decisions on particular areas of employment law (such as disability discrimination or unfair dismissal) or to browse decisions issued within a given timeframe.

It is also possible to set up daily or weekly alerts to flag up when new content is posted.

A rich resource?

In many ways, the new online service is good news for employment lawyers and HR professionals. Whilst ET decisions have always, in theory, been available to the public, gaining access has previously involved a trip to the ET archive in Bury St Edmunds to physically search through the catalogue, or submitting a written request to the archive and paying a fee. The availability of decisions at the click of a mouse will undoubtedly save time and cost.

The easy availability of first instance decisions may help to highlight any trends or patterns in the types of claims currently being brought and progressing to hearing stage. These judgments also provide valuable insight into how Tribunals might practically approach particular legal or case management issues.

When using the database as a legal resource though, it is important to remember that first instance ET decisions are not binding on subsequent Tribunals. Many first instance cases will be particular to their own facts and you may find that cases that seem in principle to be very similar will throw up different legal results. Decisions of the Employment Appeal Tribunal have long been available online. Appeal level decisions are binding on subsequent Tribunal cases and so will give a clearer picture of the law.

If an employee threatens or brings a claim against your organisation, you may also be able to use the database to dig into their history. You may know or suspect that they have brought previous claims. As the database develops, employers and their representatives could use it to unearth the text of previous cases involving serial litigants that might cast doubt on their credibility.

Think carefully though before using the database to look up applicants for employment. For example, you might learn that an applicant suffers from a disability (or other protected characteristic) or has made claims of discrimination or arising from whistleblowing against a previous employer. Using this information in your recruitment decisions might be unlawful discrimination or victimisation. Even if you decide to disregard what you find it may be difficult to prove this if challenged. Sometimes it may be simpler not to know. You may even wish to consider imposing a ban on any candidates for employment being vetted via the database.

A risk to your reputation?

The database brings with it a heightened risk for employers of adverse publicity. While some first instance ET decisions already make the papers, for example, if a reporter attends a public hearing or a disgruntled claimant chooses to tell their story, it will now be much easier for journalists to identify newsworthy cases. The media are now bound to pick up many ET cases that would previously have gone under the radar. Entering the name of a town, city or locality in the search box may highlight employers in that area or judgments issued by a particular local Tribunal. We will therefore undoubtedly see more first instance decisions hitting the local press.

Just as employers may use the database to vet candidates, applicants may use the database to research potential employers. Entering the employer’s name will bring up all recent claims against the organisation. You may miss out on talent if this aspect of your online presence is negative.

Remember that even the strongest case can still make a negative impression. For example, you may have dismissed a senior employee by following a watertight fair procedure. However, users of the database will still be able to read about that member of staff’s bad behaviour.

Bear in mind too that a key responsibility of the first instance ET is to make ‘findings of fact’ and to determine what actually happened. For that reason, decisions tend to include a high level of detail about working arrangements, business processes and procedures, and the evidence given by witnesses (who may include your managers or other senior staff).

Employee relations issues cannot be ruled out either. If your staff can view the details and outcomes of claims brought by their colleagues, you may conceivably see more complaints and claims on particular issues.

It is possible to apply to the ET for the names of the parties to a claim to be anonymised, and we may see a greater willingness to make these orders now that judgments are so freely available. However, this is not done lightly and there are limited circumstances when the Tribunal will agree to do so, such as an applicant showing that human rights law is engaged and that there are really strong reasons to go against the presumption of ‘open justice’ and anonymise reporting. It is obviously easier for a claimant than a respondent to make a compelling case.

Inevitably, increased transparency brings with it increased exposure. This of course cuts both ways and your employee may be as reluctant to be subject to scrutiny as you are. However, it is important to factor this into your tactics and decision-making when defending an ET claim. Considering whether to settle or contest a claim is always a delicate balancing act. However, the prospect of publicity may push confidentiality concerns higher up your agenda.