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A word to the publicity shy – Employment Tribunal judgments must be published

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Judgments issued by Employment Tribunals are maintained in a public register and, since 9 February 2017, published on an online database. Previous case law tells us that Employment Tribunals have no ability or discretion to override the requirement to enter a judgment on the register, save in very limited circumstances.

This issue has been considered again in the case of L v Q Ltd.

L brought various disability discrimination related claims against his employer, Q Ltd. The Employment Tribunal granted his applications to hold the hearing in private, for the names of the parties and the witnesses to be anonymised and, importantly, for the judgment not to be placed on the register.

Q Ltd appealed to the Employment Appeal Tribunal (EAT). The EAT upheld the orders granting anonymization. However, it overturned the order that the judgment should not be entered on the register.

L applied to the Court of Appeal (CA) for permission to appeal the EAT’s decision. In parallel, he applied to the EAT for additional orders requiring his disabilities to be anonymised and for the redaction of details of “disturbing matters said to be related to his disabilities”. He also sought an order giving him the option to withdraw his claim to avoid publication. L argued that these orders were “reasonable adjustments for the EAT to make”. The EAT refused, and the matters all came to be considered by the CA.

L lost on all fronts. The CA agreed with the EAT and reiterated that an Employment Tribunal has no power to order that a judgement be kept off the register (other than in national security cases). The CA did not go as far saying that there would never be a case in which a judgment could be kept off the register. However, the CA did give its view that such circumstances were hard to imagine and “if there is ever to be such a case, certainly this one is not it”.

The CA also refused permission to appeal against the EAT’s refusal to make additional orders anonymising L’s disabilities and certain incidents. That level of redaction would fundamentally undermine the reader’s understanding of the judgment. Censorship of judgments in this way would be wholly unjustifiable. The EAT had already ordered redactions to anonymise the parties, witnesses and other people referred to in the judgement. No further redaction was necessary or appropriate.

In practical terms, the online database means that judgments are now much more readily accessible and in a sense more overtly public. This brings sensitivities around publicity into sharp focus, for both employees and employers, and should be considered at an early stage wherever possible.