16 January 2019

Once a Tribunal decision (and the reasons for it) have been recorded in writing, they are entered into the public register. Since February 2017, such Tribunal decisions have been available online:

https://www.gov.uk/employment-tribunal-decisions

This means that all judgments (and reasons) are available for public inspection unless the Tribunal has made a privacy or restricted reporting order or if there are national security issues in which case the decision can be anonymised or the reasons can be given in a redacted form.

In a recent appeal case, an appellant (Ms Ameyaw) applied for an earlier Tribunal judgment to be removed from the public register or alternatively for it to be anonymised. The judgment had been sent out to the parties and entered into the public register over a year before. The reason for the application was that Ms Ameyaw objected to the fact that the decision was publically accessible online. She argued that such an order was necessary to protect her Article 8 ECHR rights (i.e. right to respect for private and family life). Both applications were refused by the Tribunal. Ms Ameyaw appealed.

The EAT refused the appeal and held

“…there is no power vested in the ET to determine that a Judgment should not be entered in the Register and the limited power that exists to exclude Written Reasons from the Register relates only to national security cases…[T]he ET had no power to exclude…Judgment from the Register.”

The judgment followed an open preliminary hearing during which Mrs Ameyaw’s conduct at an earlier preliminary hearing had been criticised. The matters to which she objected had therefore already been discussed publically. The EAT held that Article 8 was not engaged and that the Appellant could have no expectation of privacy in that regard. The EAT also said:

“the fact that the record of the proceedings, published without restriction, might be ‘painful, humiliating, or deterrent’ would not, of itself, mean that it should not be made public”.

Whether a Tribunal decides to make restricted reporting orders or anonymise decisions will be fact sensitive. It will involve a balancing exercise between competing rights under the ECHR (i.e. the Article 6 right to a fair hearing with publicly pronounced judgment, the Article 8 right to respect for private and family life and the Article 10 right to freedom of expression.) Ultimately, this case reminds parties that Tribunal judgments are public documents and can easily be accessed via a simple web search. Therefore, if you have concerns about matters becoming public (whether from an employee or employer perspective) it would be sensible to take early advice to ascertain if there is any scope for avoiding claims arising in the first place or to avoid decisions making their way onto the public register.

See: Ameyaw v Pricewaterhousecoopers Services Ltd UKEAT/0244/18/LA

For further information, please contact your usual BTO contact.

Contact: Lesley Grant Associate ljg@bto.co.uk T. 0141 221 8012