Will open justice in employment tribunals do workers any favours?
Last month, with little more than a whisper, employment tribunal judgments went online. The new database, which has since archived over 1,600 judgments, is one of the more recent moves towards open justice in the British justice system.
Registers of tribunal judgments have been publicly available for many years, but in an offline form. ‘Judgments have always been publicly available but far harder to search for and locate,’ says Kiran Daurka, an employment and discrimination partner at Leigh Day. Searchable and easily accessible, the online database now allows browsers to target specific words, phrases or names more readily.
Whilst this goes some way to demystifying the workings of the tribunal system, employment law expert Michael Rubenstein has concerns. ‘I think it is regrettable that this database allows for searching by name of claimant,’ he says. ‘I fail to see who that benefits other than prospective employers,’ says , ‘who may use the results as a blacklisting screen for job applicants.’
In its current form, there are few protections against employers attempting to find out whether job applicants have ever brought tribunal proceedings against past employers. Although personal identifiers like address or date of birth are excluded from employment tribunal decisions, those with uncommon names or other identifying features remain at risk.
‘We worry that the database could put people off seeking justice in the future,’ comments a spokesperson for the TUC. ‘It might be useful for workers to see which claims have succeeded, but the danger is that past claimants could struggle to find work in the future.’
Although in theory it is unlawful to deny someone a job because they have previously brought a case under the Equality Act or blown the whistle against employers, it is near-impossible to prove. ‘If misuse like this occurs it is unlikely that an applicant will ever find out about it,’ says Iain Birrell, practice lead for Thompsons Solicitors’ trade union law group. ‘This is a key issue in blacklisting.’ Would-be claimants may therefore be persuaded that bringing a case is not worth their while, preferring to negotiate a settlement or even to avoid airing grievances at all.
The new system has its benefits. As the TUC recognises, litigants-in-person in particular might use the database to help them to prepare their own cases. By looking at past judgments, they may gain a greater understanding of the tribunal’s reasoning on certain lines of argument. Openness also gives the general public a sense of how the courts operate. Expansion of the online BAILII system in the Family Division has taken a similar trajectory towards transparency in an attempt to ensure more independent scrutiny and oversight.
Openness and privacy
Of course, employers’ reputations may also risk the stain of publicity. ‘It will be easier to identify respondents than claimants and this is an important consideration,’ says Iain Birrell. A search for “ASDA” on the database, for instance, brings up eight cases concerning the company.
‘Job applicants may look to their new employer for instance and reputational damage could well result,’ he says. This may spur respondents to raise their game, or it might tempt them to settle more claims before a judgment is handed down.
Birrell sees fewer potential hazards from ‘future employers searching the database and making decisions based on what they find’ than from ‘a “false positive” from mistaken identity’ or the ability for journalists ‘to search for salacious key-words’.
Given that the database is searchable, journalists can now flick through decisions from their desks, even signing up to email alerts in relation to particular search terms. Birrell worries that this might lead users to track the claims that ‘contain the most personal of personal information’, like sex discrimination or disability discrimination claims. While this may not discourage claimants from making a claim in the first place, ‘it might deter some from going to a hearing which might end up in a decision that is reported.’
Birrell offers the example of a search for the term ‘miscarriage’. This brings up 17 decisions and a number of unusual names. It is then all too simple to find the claimants’ social media pages by typing the name into a search engine. Tighter anonymisation practices may offer a way forward that balances the competing interests of public scrutiny and employee protection. Leigh Day’s Kiran Daurka suggests that, ironically for an open justice initiative, ‘we may see a rise in anonymity applications’ as a result of the changes.