On 18 January 2017 a new database of employment tribunal judgments and orders was launched by HM Courts and Tribunals Service. Prior to this, for the last 40 years, employment tribunal judgments have not been published and only those that are noteworthy have been reported in journals. Judgments of the Employment Appeal Tribunal and higher courts have been available online for some time.
The database is in line with the Government’s objective of making as much information as possible available digitally and reflects the principle of open justice.
Aside from making it far easier for lawyers to conduct research, there are wider issues of the new system. While the press has always covered tribunal proceedings, most tribunal cases have gone unreported unless they involve celebrities or are particularly interesting. In the vast majority of cases litigants have therefore generally avoided publicity in employment tribunal cases.
It will now be possible for employers to search the database to find out whether someone they are thinking of recruiting has brought a tribunal claim before. If someone is not offered a job because of having previously brought an unfair dismissal claim against a former employer they will have no redress.
Although tribunal decisions have only been available online for a matter of weeks, entering a party name from the database along with the word “tribunal” into an internet search engine already produces results from the database at the top of the search rankings. It is therefore now very easy for employers to check up on someone’s employment litigation history. At present approximately 200 cases from this year and 2016 were on the database and it is yet to be decided whether past judgments will be added or whether it will simply be new ones.
With judgments being available online other information may be revealed such as details of a person’s health, religion, trade union membership and whether a tribunal believed a witness.
Individuals may need to consider the “right to be forgotten” established in Google Spain SL and anor v Agencia Espanola de Proteccion de Datos and anor 2014 3 WLR 659 in which the European Court of Justice held that individuals have the right to request internet search engines to remove search results directly related to them if they are outdated or irrelevant. Where the search engine rejects a request, individuals can complain to the relevant national data protection authority which is the Information Commissioner’s Office in the UK