The threat of sensationalised media coverage of tribunal claims leaves many employers with little option than to settle a claim to escape the damage to its reputation and that of its executives, despite often having a solid case for the defence. It also does nothing to encourage deserving employees to come forward and bring a claim.
And the fact that the press typically only provides very limited coverage to tribunal decisions also adds to the problem.
This is especially true of high-profile cases involving several days of evidence when often many weeks, if not months, will have passed before judgment is finally given. By this time, irrespective of the final outcome, what is left hanging in the air is the sense that the accusations that have been made, however jaundiced the reporting may have been, were true.
While occasionally the employee may feel the overwhelming urge to put its side of the story into the public domain, even before proceedings have commenced – as did Metropolitan Police commissioner Tariq Ghaffur – this is not the norm and most cases only appear as a result of reporting from a tribunal hearing.
From the employer’s perspective, to see your accuser publicly humiliated in the press is an understandable urge, and it is therefore tempting to provide the waiting court reporter with an advanced copy of arguments or witness statements to help ensure that press coverage is favourable.
However, it makes no commercial sense to encourage a character assassination of the employee in the press as this type of publicity can backfire spectacularly. The employer is likely be left to pick up the expensive tab for the loss of career earnings if the employee’s accusations are upheld. This is because when it comes to the award of compensation, the employee’s ability to secure future employment is a key factor. The tribunal cannot ignore the severely diminished employment prospects that will result from adverse press coverage that has taken place as a result of the proceedings.
Tribunal procedures provide only limited circumstances where restrictions can be placed on reporting. And the requirement for hearings to take place in public reflects the important principle of open justice in a democratic society. So the power to restrict reporting is principally only available in cases involving allegations of sexual misconduct – typically sexual harassment – to avoid deterring women who have potential claims for sexual harassment from bringing a claim for fear of the damaging publicity that may ensue.
Once a restrictive reporting order is in place, the media is not allowed to report the case in such a way that would lead members of the public to identify anyone making, or affected by, the allegations. Deliberate breach is a criminal offence.
Yet surely both the employer and the employee in a case should be able to apply to have such an order granted – at least for a limited period – where it is known that a serious allegation is to be made during proceedings and which, given the nature of press reporting, could fundamentally damage their reputation.
It can no longer be in the public interest that the normal rights of the press to communicate information to the public should remain unrestricted in these types of cases.
It’s clearly time to look again at the rules governing restricted reporting orders.
Howard Hymanson is a partner at Blake Lapthorn Tarlo Lyons