Employment specialists are divided on the recent granting of public access
to detailed tribunal data, reports Stephen Overell
It has been one of those legal rulings that has split employment specialists
down the middle – one side sucking air through their teeth and wincing en masse
at the implications; the other giving an airy wave of the hand and predicting
business as usual.
On the face of it, whistleblowers’ charity Public Concern at Work’s victory
against the Government in the High Court last month simply means more
information from employment tribunals. Finding for the charity, Mr Justice
Jackson said tribunals are not complying with the regulations of the Employment
Tribunals Act 1996 by providing only the names of applicants and respondents in
tribunal cases. Instead, he said, the public has a right to know the details of
the claims, suggesting a right of access to the ET1 form – the form on which
applicants to tribunals lay out their grievances.
For charities and research bodies, this modest little amendment would be
useful. They can research details of interesting cases and monitor the
operation of complicated legislation. Guy Dehn, director of PCAW, argues that
the ruling would mean putting tribunals on the same legal footing as criminal
courts as regards public access to information. "If people have disputes
resolved at public expense, it is right that the public should have access to
them. It is really about open justice. No valid interest is going to be
prejudiced by more information," he said.
But the Government disagrees, citing, rather darkly, "technical
reasons" which a Department of Trade and Industry spokesman declined to
explain. It has lodged an appeal.
At present, the public already has a right to know the decisions of
tribunals. Through the central register, held in Bury St Edmonds, people can
find out who won and get copies of the judgements for a small fee – £10 and £5
for every additional copy, posted on receipt of cheque.
What they cannot find out is information about the claims. Tribunals list
only the name of the applicant and the name of the defendant, not the nature of
the claim. Since some 75 per cent of claims never actually get as far as the
steps of a tribunal owing to settlements or changes of heart, there is quite a
difference.
So, another little victory for freedom of information? Not according to some
legal specialists and employers.
Richard Linskell, legal adviser for the Engineering Employers’ Federation,
argues that a public right to know details of a claim could encourage an
existing tendency in the press to report the saucy details of a case, and
ignore both the sober justification and the actual decision. Publicity, after
all, is invariably the part employers dread in defending a claim. The judgement
does not make a recommendation about ET3s – the employer’s response – although
PCAW says that in the interests of natural justice, it too should be available.
"There is a danger that in having allegations there in black and white,
unqualified and untested, the allegations get reported as fact with great and
lasting damage to reputations," said Linskell. "If it does not
prejudice the outcome, at the very least it would lead to unbalanced
reporting."
If the Government’s appeal fails, the tribunals will have to interpret the
judgement and decide exactly what should be available. If the Government
decides it should just be a summary of the claim, then skilled people will be
needed to objectively summarise hundreds of thousands of claims. If, on the
other hand, the whole ET1 form becomes public property, here too, there are
anxieties.
"People in their initial phase of anger often say wild things on an ET1
that they later back away from," said Ben Wood, employment solicitor at
Lupton Fawcett.
Yet he acknowledges that more information could also be useful to employers.
"I suppose it might also give them handy information about serial
claimants."
In theory, the document would attract the same qualified privilege that already
exists in reporting tribunal cases. Unless a chairman imposes reporting
restrictions for reasons such as national security or sexual or commercial
sensitivity, tribunals are open to anyone and what is said to them is public.
But Sarah Veale, employment rights specialist at the TUC, argues that
although the judgement deserves a cautious welcome, the unions would have
concerns about consent. "A lot of dirty linen is often washed at tribunals
but I think there might be legitimate grounds for requiring consent from the
parties, especially the applicant. It would not be right if publicity deterred
people from exercising their rights. Better use of pre-hearing reviews might
help deter the weak claims."
In last month’s case, one of the Government’s arguments for preserving the
status quo was that the tribunal system was set up to be different from normal
civil and criminal jurisprudence, representing fast-track, accessible justice.
Therefore, the example of information available in criminal courts, listing the
charges and the plea, was irrelevant.
But some lawyers argue that the idea of the tribunal system being separate
from the rest of the courts framework is becoming increasingly anomalous.
Hammond Suddards, the firm which runs the IPD’s legal helpline, takes this
view. "The whole spirit of the times, both in terms of freedom of
information and the culture of the Internet, militates in favour of more
information being available," said national head of employment Sue Nixon.
Claims: key facts
• Between April 1999 and March 2000 there were 164,525 applications to
employment tribunal – a leap of 34 per cent on the previous year when there
were 124,256
• Unfair dismissal remains the biggest claim accounting for some 50,000
cases
• Protection of wages accounted for more than 36,000 claims and beach of
contract 29,000
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• Race and sex discrimination accounted for 10,000 claims between them
Source: Acas
