Employment Tribunal Judgments are now available to view online. You can view the site here.
Previously, in order to read a first instance judgment, you had to hope that one of the parties published it or that the judiciary website considered it to be of sufficient importance to publish or you had to take a trip to the central register and locate it in person.
The site is currently in the ‘beta’ test phase. Therefore, there may be a few bugs that need to be ironed out. I have already noticed that one Judgment which was available on the site is no longer there. Also, some judgments referenced on the site are not hyperlinked correctly and are not available to download. Helpfully, there is a box on each page that enables you to report these problems.
There doesn’t appear to be a pattern as to which judgments have been uploaded and the site only has a small proportion of recent judgments uploaded. Again, with the site in the beta phase, more judgments may be uploaded in the near future.
Practitioners may want to think about the following points:
1. There is no victimisation protection for an employee who brings a claim of unfair dismissal and some other types of non-discrimination claim. i.e. if a future employer dismisses an individual on the basis of their litigation history, there is unlikely to be a remedy for an employee without sufficient service.
2. At the same time, the extent to which information on the site is optimised on google remains to be seen. The more widely available the information, the more likely it is to be seen by those searching by name on google. This may make it easier for job applicants and new workers to claim that the new employer is aware of their protected characteristics or previous protected acts.
3. The existence of judicial criticism will achieve a level of permanence. Whether it is a Judge criticising the way in which a case has been put or the honesty of a witness, points that would previously have drifted into the ether will now be available.
4. Following on from point 3 above, it will now be possible to freely make searches relating to an employers previous tribunal history. There are a range of circumstances in which this could assist a Claimant. For example, previous discrimination or stereotypical comments could be the basis for drawing inferences or the fact that an employer has made the same procedural error in the past and has repeated this behaviour could be a basis for increasing an uplift on any award for a breach of the ACAS code. The flip side applies to the rare vexatious litigant submitting multiple claims.
5. It will allow lawyers to see the different ways in which a point is argued at first instance. Naturally, reading appellate cases is likely to be the first point of call, but there is a difference between appellate and trial advocacy and it will be useful to see how different arguments are developed.
6. The press has always been able to report Tribunal proceedings, but the vast majority go unreported. I have been involved in many interesting cases which aren’t reported at all, but have seen mundane and everyday matters receive prominent publicity. The risk of publicity is now much greater at the outset.
7. In considering whether to appeal a Judgment to the Employment Appeal Tribunal, the fact that the Judgment may end up on the EAT website and thus generate greater publicity has always been a factor in deciding whether or not to appeal. That factor is now largely gone.
8. The law in respect of reporting restrictions remains the same. The fact that the Judgment will go online does not alter the position in law, before the database, the press would have been free to report on a public hearing and the judgment would exist on the public register. However, I suspect that we may see a slight increase in parties seeking such orders -it does not follow that they will be granted.
Ultimately, a Judgment is a public document. As practitioners, we should not be against public documents becoming more readily accessible. Rather, we should consider whether existing protections are sufficient to protect parties from adverse consequences of the greater likelihood of the information being in the public domain.