When Employment Tribunal proceedings become public earlier than expected there can be adverse consequences
A recently published case involving a former employee of PwC has thrown the spotlight on the distinction between private and public hearings in the Employment Tribunal and highlighted how events at a private hearing might nevertheless find their way onto the public record.
What happened in the case?
The employee in question had brought claims against PwC. There was a private preliminary hearing and the Judge was critical of the claimant’s behaviour during the hearing, which he found to be disruptive. PwC relied on this in support of an application to strike out the claims based on the claimant’s ‘scandalous and vexatious’ conduct at the private hearing.
Although the strike out application failed, the judgment recorded that the claimant had “behaved reprehensively” at the earlier hearing. As the strike out hearing was a public hearing, the judgment was published on a public register of Tribunal judgments.
Around a year later, the claimant applied to have the judgment removed and anonymised, indicating that the public criticism of her behaviour had impacted on her ability to secure another job. The claimant’s application was unsuccessful. The Employment Appeal Tribunal found that the claimant could have no expectation of privacy in respect of what took place at the public strike out hearing (or the subsequent judgment) and even where findings are ‘painful’ or ‘humiliating’ or otherwise damaging to reputation, there is an overriding interest in ensuring open justice.
Why is this relevant to employers?
In this case, it was the claimant who was caught out by matters at a private hearing finding their way onto the public record. However, employers are also at risk of this.
Most claims brought in the Employment Tribunal are settled prior to the final hearing, typically using an agreement that imposes confidentiality and “non-bad mouthing” obligations on the parties. Avoiding the publicity of a claim (particularly one that could have a significant reputational impact, such as a claim for discrimination) is often a priority for employers, and the fact that most Employment Tribunal proceedings remain essentially private until the final hearing provides employers with scope to achieve a confidential settlement at any time up to the final hearing. A common strategy for employers is to seek a confidential settlement during the (normally private) preliminary stages of Employment Tribunal proceedings.
However, the case of the PwC employee demonstrates that employers cannot take for granted that they will be able to avoid details of the claim becoming public during the early stages of the proceedings. This might be because what happens at a private hearing subsequently becomes the subject of an application at a public hearing (as in the case above) or because a hearing that was expected to be private strays into substantive matters and is converted into a public hearing. Depending on what information is made public, this could result in significant reputational damage for the employer.
OK, so what is the standard position regarding publicity of hearings and judgments?
Access to information relating to Employment Tribunal claims is usually limited to claims that go all the way to a hearing (which is nearly always open to the public) and a decision, which will be published on a public register of Tribunal judgments.
At the preceding stages of a claim, it is not possible for the press or others who are not party to the proceedings to obtain details of a Tribunal claim. This is because details of the claim are not published and the case management hearings held during the earlier stages of litigation to set directions for the progress of the claim are private. Typically, the only information available about a case in advance of the full public hearing is that published in the daily cause list. This is a list displayed in the reception area of each Tribunal office, which contains the names of the parties and the nature of the dispute (e.g. unfair dismissal, discrimination, etc) but no other details of the substance of the dispute. The same information is also emailed to a “press list” of subscribers each week, although it may be possible to request that this case is not mentioned on that list.
Once the final hearing starts, the position changes. Most final hearings in the Employment Tribunal are held in public, meaning that the press and members of the public are free to attend and listen to the evidence heard and judgments delivered. Certain preliminary hearings may also be public. High profile cases can attract a lot of publicity. Sometimes claimants will actively encourage this by inviting members of the press to attend the hearing.
A record of the judgment made in a public hearing will usually be published on the online public register, which is searchable by party name (follow this link to take a look: https://www.gov.uk/employment-tribunal-decisions). This means even if the public hearing is concluded without any press attention, a Google search (for example, by a prospective client, investor or job applicant) may return a copy of the judgment. If the employer was found liable (for example, of discriminating against an employee) or there are other unfavourable comments in the judgment (for example, if the credibility of the employer’s witnesses is called into question), this could have significant ongoing repercussions for the employer.
Can’t we apply for the matter to be kept private?
In exceptional cases, the press and public may be excluded from the final hearing or the Tribunal may impose restrictions on what can be reported about the case, but in most cases there will not be grounds to apply for such restrictions.
If we settle the case before a public hearing, will we avoid any public record of the claim?
As mentioned above, in most cases the early stage hearings will be private and this gives employers an opportunity to settle cases before details are published (although the claimant could seek to generate their own publicity, either in the traditional media or via social media).
As part of any settlement, the claimant will be required to withdraw their claim and the Tribunal will usually issue a one-line judgment dismissing the claim on withdrawal. Although this judgment will be published on the public register, no details of the case will be set out in the judgment so the scope for reputational damage is minimal. The judgment will simply disclose that a claim against the employer was dismissed following withdrawal, with no further details.
What is the bottom line?
In most cases, there will be an opportunity to settle an Employment Tribunal claim without details of the claim becoming public. However, as most cases will involve at least one preliminary hearing, employers need to be alert to the risk that the details of any hearing (even those listed as private hearings) could subsequently become public. Experienced employment lawyers will be able to guide employers through this process and help manage the risks of reputational damage inherent in all litigation.