Do Tribunals have the power to prevent publication of a judgment?

Employment Tribunal

Mr L brought claims of disability discrimination, harassment and victimisation against his employer, Q Ltd. Shortly before the hearing the Employment Tribunal (ET) granted Mr L’s application that the entire hearing should be held in private, the names of the parties and witnesses should be anonymised and the judgment should not be placed on the register.

Employment Appeal Tribunal

Q Ltd appealed to the Employment Appeal Tribunal (EAT). The EAT upheld the orders of the ET preventing identification of the parties and witnesses and granting anonymisation. However, the order directing that the ET’s judgment was not to be entered on the register was set aside. Q Ltd also appealed against the ET’s finding that they had discriminated against Mr L by failing to make reasonable adjustments to his work which was remitted to a different ET. The Court of Appeal decision did not concern this aspect of the appeal.

A draft of the EAT’s judgment was shared with the parties. Before it was formally handed down, Mr L applied to the Court of Appeal for permission to appeal the EAT’s decision to allow the judgment of the ET to be entered on the register. In addition, Mr L sought orders from the EAT that neither the judgment of the ET, nor of the EAT, should be published until any appeal by the Court of Appeal was disposed of and in any event:

• that the two disabilities which formed the basis of his claims were anonymised (as condition A and condition B);
• the judgments be further redacted to remove descriptions of the effect of those conditions, in particular, in relation to “two disturbing matters said to be related to his disabilities“; and
• Mr L to be given the option of withdrawing his claim rather than having the judgments made public.

All the orders were sought on the basis that they consisted of “reasonable adjustments for the EAT to make”. The EAT refused to order any further redactions and suspended execution of the order allowing the ET judgment to be placed on the register until determination of the appeal. The EAT granted a 48-hour stay on publication of the EAT’s judgment until determination of the appeal. The EAT said that it had no power to give Mr L an option to withdraw his claim rather than have the claims made public holding that a party shown a draft judgment could not prevent its publication by withdrawing the claim.

Court of Appeal

The Court of Appeal dismissed the application.

In refusing permission to appeal against the EAT’s decision to set aside the ET’s order that the judgment would not be entered on the register, the Court held that such an order would be contrary to the principles of open justice. The Court held that there was no explicit power in the ET Regulations or Rules of Procedure to prevent a judgment and written reasons not being entered on the register, other than in cases of national security. The Court considered that it was not necessary to say that there would never be a case (other than one concerning national security) in which an ET judgment could be kept secret, but commented that it would find it hard to imagine circumstances in which it would be right for an ET to withhold publication altogether.

The Court also refused permission to appeal against the refusal to make orders anonymising Mr L’s disabilities or remove details of the “two disturbing matters“. The Court held that as the Respondent’s witnesses could not properly be prevented from being told the full judgment or discussing it, the idea that Mr L was at risk of further embarrassment from someone reading the ET judgment on the register, or elsewhere, working out that it referred to him and discovering what his disabilities were, if they did not know of them already, seemed extremely remote. The Court held that it was wholly unjustifiable to have judgments censored in this way.

Comment

This case is a clear indication of the importance of the principle of open justice. The case is a reminder for employers (and employees) to be mindful at an early stage of the impact of judgments being public and the reputational harm this could cause, particularly now that tribunal decisions are freely available online.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.