Since February 2017, judgments of the Employment Tribunal must be published online, and be available to read by the public. In the recent case of L v Q Ltd, the Court of Appeal clarified that whilst it may be possible to anonymise and redact part of a judgment in order to protect a party’s identity where necessary (such as where one party suffers from a disability), there is no justification for withholding it from the register altogether.
Facts of the case
An employee (‘Mr L’) brought claims against their employer (‘Q Ltd’) for disability discrimination, harassment and victimisation. Before a hearing took place before the Employment Tribunal, Mr L requested that the entire hearing be held in private and that the names of parties and witnesses be anonymised and that the judgment should not be placed on the register. All of these adjustments were granted by the Tribunal.
However, Q Ltd appealed to the EAT against various parts of the judgment, including the decision to permit those adjustments. The appeal tribunal overturned the decision to withhold the judgment from the register, but changed the parties’ initials and altered certain passages within the judgment ensuring anonymity could be preserved.
Mr L then appealed to the Court of Appeal against the decision to publish the judgment. He also sought an order that the two disabilities he had relied upon to advance his case, should be referred to only as Conditions A and B, and that the judgment be further redacted to reference to an ‘incident’ involving disturbing matters, said to be related to his disabilities.
The decision of the Court of Appeal
The Court of Appeal acknowledged that there are very limited circumstances in which an Employment Tribunal judgment should not be published; the most obvious is where the case deals with matters of national security. Aside from the limited exceptions, there is no explicit power to prohibit publication.
Mr L had argued that he may not have proceeded with the Tribunal claim had the judgment been unredacted; he went on to argue that his right to a private life would have been compromised had the judgment been published.
However, on the facts of this case, the Court of Appeal decided that the principle of open justice was paramount and overruled the right to privacy.
The Court of Appeal also stated that it could not foresee circumstances where an Employment Tribunal could withhold publication of a judgment altogether.
The Court also refused Mr L’s request to anonymise details of his disability or details of the incident mentioned in the judgment, as it was ‘wholly unjustifiable’ to have a judgment censored in this way. Mr L’s disabilities and the consequences of them were the foundation of his claims; therefore to remove reference to them would undermine the need for justice to be seen to be done. The Court ordered the judgment to be published with details which identified the parties redacted, but with no other changes.
Employers and employees should be aware that if they choose to argue a case before the Employment Tribunal, the final decision will be published on a public register, with all details of the claims and any counter-claims available to view (save in limited circumstances where redactions can be made.)
Clients may wish to take this into consideration when deciding how to conduct their case. It might be that early negotiation and settlement discussions are more desirable in order to keep details relating to the matter confidential.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.
If you have any questions relating to this article or about the publishing of employment tribunal judgments, or if you would like to find out what else we can do to help please contact the employment team at [email protected]