UK: recent cases highlight limited scope to restrict publicity for tribunal claims

A number of recent decisions have emphasised the importance of open justice and the limited scope for derogations from it.  The case of Curless v Shell International (see our blog post here) suggested that anonymity orders, at Court of Appeal stage at least, will be difficult to obtain in most cases.

In L v Q Limited the Court of Appeal ruled that the EAT and ET had no power to prevent publication of a tribunal judgment on the public register (which since 2017 has been available and searchable online), save in national security cases. While the names of the parties, witnesses and individuals mentioned in a disability discrimination claim were properly redacted, the EAT had been correct to refuse to make an order redacting details of the claimant's disabilities, the consequences of the disabilities and an incident that was embarrassing for the claimant, as that would undermine a reader's understanding of the judgment.

It is important for both parties to appreciate the public nature of employment tribunal claims and the risk of reputational damage. Even matters at a private preliminary hearing could end up on the public record if referred to in a public hearing. In Ameyaw v Pricewaterhousecoopers Services Ltd the employer (unsuccessfully) sought to strike out the claim based on criticisms of the claimant's behaviour made by the judge at the private preliminary hearing. Because strike-out hearings are in public, the judgment including those criticisms was published on the tribunal’s website. The tribunal and EAT refused the claimant's application to have the judgment removed or anonymised. The claimant could have no reasonable expectation of privacy and, even if she could, that would be outweighed by the principle of open justice, notwithstanding that the record might include 'painful' or 'humiliating' details.

Employers should also be aware that a daily cause list (including both final and preliminary hearings) will be displayed in tribunal offices setting out the names of the parties and the category of dispute (eg, unfair dismissal, sex discrimination) but no other details. It is also possible to subscribe to receive the daily cause list and a weekly press list by email (see here). Most final hearings will be in public and the tribunal's decision will normally be published on the public register which is searchable by party name. However, if the claim is settled, there will usually be a one-line judgment dismissing the claim on withdrawal and this will be published on the register without any further details of the claim.