Last week, the Ministry of Justice (‘MOJ’) formally launched its website of Employment Tribunal (‘ET’) decisions. Presently, the website contains around 140 past decisions from 2015 onwards. Future ET decisions handed down in England, Wales and Scotland will be uploaded onto the website. This post considers what impact the publication of decisions may have upon employers facing ET proceedings and a later post will consider the impact on employees.
Previously, copies of ET decisions were archived in Bury St Edmunds ET (for English and Welsh decisions) and Glasgow ET (for Scottish decisions). They were accessible if a request was made in writing or in person and a fee was paid to Her Majesty’s Courts & Tribunals Service. This position contrasted against proceedings in civil courts where pleadings, judgments and orders are available as of right and the Employment Appeal Tribunal where decisions have been available online for some time. Criticism was made about the limited accessibility of ET decisions and so it was proposed that future decisions should be publically available in the interests of open justice. It is unclear if any more past decisions will be uploaded onto the website (although they will remain in archive for six years after the date they were handed down), or whether the MOJ will seek to optimise the website on search engines.
The legal position has not changed: final hearings are still ordinarily heard in public and decisions are publically available, subject to restricted reporting orders or the omission of written reasons where evidence was heard in private. However, there are significant practical implications arising from increased accessibility: a critical feature of the new website is that the content of decisions is searchable. This means that a website user can search for decisions by drop-down menu or free text search, which could include the name of the employee, employer, Tribunal judge or member, or lawyer. Furthermore, decisions can appear in results generated by a generic search for a respondent business on a search engine. If a decision is widely dispersed on the internet, then it will become increasingly visible on a results page.
Increased accessibility may cause some concern for employers. The risk of adverse publicity for businesses is now much greater, as allegations about personnel or confidential commercial information become more public, thereby encouraging early settlement. Employees bringing a claim could seek to draw inferences about the business from findings of fact in previous decisions, particularly those relating to discrimination claims, which may be taken out of context. Statistics or patterns about a business involved in ET proceedings may also be compiled and published; there is a considerable risk that a partial view will be presented where written reasons have not been provided with a judgment. The other side of the coin is that employers will be able to search for any decisions involving applicants or employees, although care should be taken to ensure that detrimental treatment does not follow as a result.
Moreover, the ability to search decisions online may have unintended consequences as to the determination of a claim. Once the daily cause list has been published, a party will be able to search for recent ET decisions involving the judge allocated to their case. It is possible there will be an increase in accusations of judicial bias, particularly in cases involving litigants-in-person (‘LIPs’). A judge may also be mindful that their findings of fact as to the credibility of witnesses, or comments as to how a case was put, will be available permanently on the internet. Consequently, written reasons may become increasingly sanitised so as to limit the appearance of bias or damage to professional reputations.
Notwithstanding the above, a key advantage of greater transparency is that the publication of decisions should provide helpful examples of how ETs approach issues of fact and law. While this is helpful for all advocates, this could provide particular assistance to LIPs in clearly presenting their case to the ET, thereby making it more straightforward for employers to provide a response. Previous decisions will also include examples of quantum awarded in particular causes of action, which should help to encourage realistic expectations as to remedy.
Ultimately, the introduction of the website brings the transparency of ET proceedings more closely into line with other civil forums. The increased accessibility of ET decisions has significant consequences for businesses which should not be overlooked when an employment dispute arises.