Legal Q&A: Handling high-profile/sensitive tribunal claims

Can I prevent the press from reporting my case?

Sometimes, yes – but only in a very limited way. A tribunal can issue a Restricted Reporting Order, but it can only be used to protect individuals, not companies. The order prevents the press from identifying a person affected by the allegations or the person making the allegations. They are only made in cases involving allegations of sexual misconduct, or in disability discrimination cases where evidence of a personal nature is likely to be heard. Even where an order is made, it will only last until, at most, remedy and liability have been determined by the tribunal.

Our case involves witnesses giving evidence concerning some very sensitive and confidential information. Can I insist that the tribunal hearing is held in private?

A The tribunal can hold part or all of a hearing in private if:

  • a person is likely to give evidence which they cannot disclose without contravening legislation
  • the evidence has been communicated to the witness in confidence
  • the disclosure would cause substantial injury to the undertaking in which the witness works
  • there are national security issues involved.

However, the general presumption will always be that the public should have full access to
a hearing.

I have a number of documents that are relevant to the case, but they contain highly sensitive information. Can I simply refuse to disclose them on this basis?

No. You should raise the matter with the tribunal in advance of disclosure and let it know of your concerns. Generally, all evidence relevant to the facts in issue in a case must be disclosed to the other side. If the tribunal is satisfied that the disclosable information is sensitive (eg it may reveal the identity of a witness whose safety may be compromised, or a highly sensitive trade secret), it may allow you to disclose the document with the relevant information redacted (ie blanked out). If the relevant information cannot be hidden by redaction, it may be that some of the evidence has to be excluded from proceedings, and the tribunal will have to make a decision on that basis, although this will be very exceptional.
One of our witnesses is worried about press interest in the case. Can they give evidence in writing without having to appear before the tribunal?

Yes. Your witness can submit a written witness statement to the tribunal. Any written representations must be submitted to the tribunal at least seven days before the hearing. However, because the other side will not have the opportunity to cross-examine your witness, the tribunal may not give very much weight to their evidence. This might be fatal to your case if they are an important witness.

I am concerned that the claimant in this case is using the press to embarrass us to settle their claim. Should I use the press to retaliate?

Prior to the conclusion of a case, you run the risk of acting in contempt of the tribunal unless you are very careful about what you say. This can have very serious consequences for the individuals involved and for your case. Furthermore, you are never likely to be able to control what the press reports, and significant press attention is likely to result in added stress on your witnesses in advance of and during tribunal proceedings. 

I think the press will be interested in our case. Would you recommend taking advice from a PR?

Yes, both in dealing with the media and in terms of what you say to your employees. A properly thought through and legally compliant response to the press as a case is heard is vital, as is your organisation’s response to the outcome (whatever that might be). It is important that PR people – whether your own internal people or external consultants – are kept up to speed at all times as to the progress of the case. This may not necessarily be the first thing that you think about when planning your case, but this approach is vital if media interest in your case is to be managed properly. You do not want to find yourself in a position where your opponents are managing your publicity for you.

Robin Jeffcott is partner and head of employment, and Michael Smith is associate, Richards Butler

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