It is not uncommon for a new claimant client to ask their adviser about the risk of a future employer finding out that they have brought a claim. Previously, the adviser has been able to largely reassure the client that the risk was minimal in most cases. However, the situation is now very different and it is incumbent on every claimant adviser to let their client know the potential risks.
On 9 February 2017, HMCTS published the online database of employment tribunal decisions which covers decisions from England, Wales and Scotland. HMCTS’ intention is that all employment tribunal judgments will be published on the database going forward.
Last week, Marianne Tutin at Devereux looked at the potential implications the online database may have for employers. This blog looks at the potential implications from the employee’s perspective.
Employers will now be able to search for an employee’s name as part of their recruitment process. While there will be a risk the applicant could bring a victimisation claim if their previous claim were for discrimination, in reality, this will be a minimal risk for employers and one many will be willing to take. Few job applicants bring an employment tribunal claim when they are turned down for a position for an unlawful reason. Those who do will face a considerable evidential burden. Probably many job applicants are not aware of their right to bring a claim in any event.
Those currently in employment may be concerned that their employer will now carry out a search to see whether they have brought any claims against previous employers, particularly in potential times of conflict, such as when the employee has raised a grievance. It is currently unclear whether HMCTS intends to enter all historic judgments on the site. Currently, there are some judgments from 2015, but the majority were handed down in 2016 or 2017.
While the majority of claims presented to the tribunal will settle before the final hearing, even some preliminary hearing judgments and details of withdrawn claims have been put onto the online database. This means that a prospective employer will not be able to see the detail of the claim, but they will be able to see that the prospective employee has brought a claim against a previous employer and what type of claim was brought.
So what can a potential claimant do to protect their position?
Not bring a tribunal claim. While this might seem obvious, claimants now have yet another incentive to attempt to settle their claim before issuing proceedings (as if tribunal fees were not enough). The cynical among us might think that this was not unintentional on the part of HMCTS. However, it’s worth remembering that employers also have a reputational risk from published judgments so will also have an incentive to settle.
Use respondents’ fear of adverse reputational risk to their advantage. It is not just corporate employers whose name may go on the database: those individuals listed as respondents to a discrimination claim will also now have their name on the record. A potential claimant may wish to make it clear during settlement negotiations that they intend to include individuals within the organisation as respondents (so long as those claims have merit). In the same way that many individual respondents are loathe for a claim to go to final hearing where they will be required to give evidence, many may now feel the same about a potential claim being presented to the tribunal.
Consider whether a restricted reporting order is an option. Since the introduction of the 2013 employment tribunal rules, it is possible to obtain a restricted reporting order (RRO) in a wider range of circumstances than just national security, sexual offences or disability. An RRO can anonymise one or more parties on the public record of proceedings for a fixed period or indefinitely. The tribunal can make an RRO where it considers it necessary in the interests of justice, or to protect the rights of any person under the European Convention on Human Rights (rule 50).
The online database is likely to be here to stay. It remains to be seen what impact it may have on the numbers of issued claims, the tactics employed by each party and the implications for those involved in a claim.