Being named in court will likely cause dread in the hearts of some employers -yet this possibility has been increased by the Information Commissioner’s Office recent ruling that the names and addresses of all respondents to employment tribunal claims must be made public by the Department for Business Enterprise and Regulatory Reform (BERR).
This marks a significant shift in the level of details publicly available about individual tribunal claims and a switch back to past practice.
From 1965 to 2001, the names of both parties and a general description of the claim, without reference to its particulars, were recorded in the Register of Employment Tribunal Applications, which was open to the public. But a change to employment tribunal rules in 2001 meant that the only public details (other than administrative ones) were the parties’ names. Even this proved too much for some tastes as there were concerns the register was being abused, largely by the no-win no-fee brigade cold calling respondents and offering to represent them.
It was, therefore, no surprise then that the register was discontinued on 1 October 2004. Since then, the only public record of claims has been the Register of Judgments, which covers court rulings only.
Well that’s about to change following the decision by the deputy information commissioner. And, ironically, the decision stems from a request by an anonymous applicant, who applied under the Freedom of Information Act 2000 for an order for disclosure of the names and addresses of all respondents to employment tribunal applications since 2004.
BERR refused to provide the information. Why? It argued for an exemption on the grounds that information can be withheld if its disclosure would prejudice the effective conduct of public affairs – although it failed to produce evidence.
Its argument makes perfect sense. Releasing information could leave organisations open to direct marketing, will expose the existence of disputes publicly, and could reduce the chance of informally resolving them. It could also leave respondents at risk of unwarranted damage to their reputations.
However, the deputy information commissioner argued that it was in the public interest to disclose the requested information.
So what does this mean for employers?
The good news is that this does not take us as far back as the pre-2001 position.
The possible downsides are that access to details of respondents gives those who see this as a business opportunity the chance to target companies with marketing campaigns, with the aim of offering to represent them at employment tribunal.
Businesses, especially small ones, may have limited resources for dealing with claims, must be wary of such campaigns as some organisations who offer these services may do so on misleading terms. Also of concern to larger employers is the adverse publicity that could result from media reports.
On the plus side, there is no requirement for information about the claim itself to be made available, and it appears the deputy information commissioner’s ruling only applies to respondents and not claimants.
Although employers cannot prevent their details from being made public, all is not yet lost: BERR may appeal. And if it wins, respondents will likely be protected from disclosure.
The decision only relates to disclosure of the names and addresses of respondents – not claimants or claim details.
Details of respondents in all claims, regardless of whether they settle, will be available.
Employers could face unwanted media attention and targeting by organisations offering representation.
BERR may appeal.
Gagandeep Prasad, soicitor, Charles Russell. Additional material by Caroline Buckley, professional support lawyer, Charles Russell