Trial by Google?

05 June 2017

In February 2017, with very little fanfare, the Ministry of Justice (MoJ) launched its new publically-accessible online database of employment tribunal (ET) decisions.

In February 2017, with very little fanfare, the Ministry of Justice (MoJ) launched its new publically-accessible online database of employment tribunal (ET) decisions.

The database includes all new ET judgments handed down in England, Scotland and Wales as well as some older decisions dating back as far as 2013. Prior to this, copies of ET decisions were archived (English decisions located in Bury St Edmunds) and accessible only by written request or in person for a fee. The online database was created in the interests of open justice, making judgments more accessible to the public.

It is possible to search the database by the name of the claimant, respondent, Judge or any other party involved. A decision may also appear in results generated by a search of a respondent’s business name using a search engine. The availability of fully searchable, online ET judgments therefore has potentially some significant implications for both employers and employees who are contemplating the prospect of ET litigation.

The online database of ET decisions is likely in due course to attract interest from the media, particularly any media based locally to the respondent organisation. As yet however it is perhaps too early to assess whether this will be the case. There may be an increased risk of adverse publicity for both parties, regardless of whether or not the claimant ultimately succeeds in their claim. It may have a particularly detrimental effect on a respondent who loses badly in the tribunal and who is subject to express criticism by the Judge. Such criticism in the Judgment is not uncommon. It will be interesting to see whether, as a result of the greater accessibility to their judgments, Judges are more guarded in their criticism. As an Employment Judge I am not sure it should affect my drafting.

For certain employers possibility of reputational risk will be an additional factor in considering whether to proceed with a claim. If settlement is either not desirable or unachievable, some respondents (depending on the nature of the case) might be advised to take a proactive approach and use public relations specialists to manage and respond to any negative publicity.

The prospect of sensitive evidence being in the public arena might mean that we start to see more applications for restricted reporting orders (RROs) although I am not sure Judges will be influenced by this new development to grant them more readily.

One possible advantage of this new facility is that it will allow advocates in a case to review previous judgments handed down by the same Employment Judge, which might give them a useful steer on how to formulate their submissions.

Kevin Palmer sits as an Employment Judge in the South East Region.

If you would like to discuss issues represented in this article further, please speak to Kevin Palmer. The content of this article is for general information only. For further information, please contact a member of Birketts' Employment Law Team. Law covered as at June 2017.