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Can someone who is not a party to a court case in England get access to court documents?  Does this extend to witness statements and documents lodged as evidence?  What does this mean for employers, claimants and witnesses in employment tribunals?  The Supreme Court had to consider these questions in the case of Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38.

In England and Wales the rules which regulate court proceedings are called the Civil Procedure Rules (CPR).  Under CPR 5.4C(2) a non-party to litigation may, if the court allows, “obtain from the records of the court a copy of any other document filed by a party”.  Statements of case, judgments and orders made in public are available without permission (under CPR 5.4C(1)).

The Supreme Court held that, as a default position, the public should have access not only to the parties’ submissions and arguments, but also to documents parties have placed before the court and referred to during the hearing.  In delivering the judgment, Lady Hale stressed the importance of justice being done in the open and emphasised that the public will only be able to understand how the justice system works and how judges reach their decisions (and be able to question the same) if they have access to the evidence and documentation relied upon during the proceedings.

However, the CPR does not grant an unfettered right of access.  The person making the application has to be able to explain:

• why they are seeking access; and
• how granting access would advance the open justice principle.

It is then up to the court to weigh up whether to allow the application, taking into consideration any risks of harm granting access might cause to the judicial process or the legitimate interests of others.  Reasons to deny access might include protecting the interests of children or national security, or to protect trade secrets and commercial confidentiality. This case is important for parties in employment tribunals too as Lady Hale was clear that the rule applied to all who exercise the power of the state.  The decision should not be interpreted as a “free for all”.  Where a third party is making a fishing expedition and does not have good grounds to receive the information, the court does have the discretion to withhold it. However, claimants, employers and witnesses should remember that tribunal proceedings are public and there are very limited rights to privacy.

There is generally no obligation on an employer to give a reference at all.  There are, of course, exceptions – for example, where unusually there is a contractual entitlement to a reference, or the employer risks victimising or discriminating against an employee by not giving one, or there are Financial Conduct Authority or Prudential Regulation Authority requirements which must be met. In some cases it may be said that an employer has a moral obligation to provide a reference. Either way, the employer’s policy on references must be consistent or it could lead to allegations of discrimination.

Who provides a reference?

References can be given on behalf of a business or in a personal capacity. An employer is legally responsible for the contents of a corporate reference because it is provided on its behalf.  It is therefore advisable to have a policy detailing who can give a reference, in what format and what information it can include. To ensure that a personal reference is not taken as a corporate reference, it should not be provided on headed notepaper or include the referee’s job title.

What information should a reference include?

A reference does not have to be positive, but it must be accurate and true. There is generally no requirement as to the content of the reference, but given the potential liabilities it is common (and usually advisable) for employers to simply give a short statement confirming the facts of employment, such as the relevant dates and the employee’s job title. More detailed references could include information such as the individual’s performance, or absence and disciplinary records. However, any comments about performance or absence should not be related to a disability and you should be mindful of data protection obligations and consent requirements. It is often advisable to provide a reference in writing rather than verbally, as there is less possibility of misinterpretation.

What happens if a reference is inaccurate or unfair?

If the subject of a reference believes that it is inaccurate or misleading and has harmed their prospects of future employment, it may be possible for them to sue their former employer for negligent misstatement or even defamation. The individual may also be able to take the employer (and potentially the organisation which is the recipient of the reference) to an employment tribunal if they think that the negative reference is a result of discrimination.

Employers often include disclaimers in a reference to exclude liability to the recipient for any inaccuracies, but disclaimers will only offer protection to the reference giver if they are reasonable.

Data protection 

The provision of a reference will generally involve the processing of personal data by an employer as a data controller and so, as with all personal data processing, will be subject to data protection principles. It is particularly important, when dealing with references, to have regard to data protection requirements when providing information in a reference about an employee’s health record or reasons for periods of absence, as this will be special category personal data for the purposes of the GDPR.

The Centre for Social Justice (CSJ) has this month published a fascinating report as part of its Future of Work research programme entitled “Ageing Confidently: Supporting an Ageing Population”. The CSJ is an influential independent think tank that studies the root causes of Britain’s social problems and addresses them by recommending practical, workable policy interventions. If your role involves driving progress towards equality and diversity in the workforce, this will be interesting reading.

The first section of the report looks at “demographic trends”. As you might expect with an ageing population, in the UK employment rates have increased for those aged 50-64 years old. The report sets out in some detail the impacts of these trends on different sectors, from public administration and defence to retail.

The demographic shift presents benefits and challenges to employers and the state generally. The report considers the effect of an ageing workforce on pensions and benefits, healthcare costs, unpaid caring, productivity levels, skills and technology.

“Without a fundamental change in employment culture and an increase in opportunities for older workers … individuals, businesses and the economy will suffer”, finds the report.

In terms of recommendations, the CSJ suggests that the Right to Request flexible working should be strengthened and should be a right for all employees from day one, rather than at 26 weeks (the Right to Request is due to be evaluated in 2019).

Further, there should be improved communication between employers and employees for older workers in relation to opportunities for workplace adjustments and training opportunities. Rather than focusing on “retirement support”, employers should consider these discussions as a tool to enable older workers to continue to work, if they so wish.

Other proposals include enhanced healthcare support, implementation of employee-tailored “Mid-Life MOTs”, the initiation of an “Age Confident” scheme and, potentially controversially, an increase in the State Pension Age to 70 by 2028 and to 75 by 2035.

The report can be accessed here.