Analysis – Publication of tribunal judgments a breach of human rights?

Since February 2017, all employment tribunal judgments are available online. This means that the names of the parties, their witnesses and anyone mentioned in the proceedings can be easily obtained. This may deter a worker or employee from seeking access to justice or witnesses from giving evidence for example, because of the fear of harming their future career prospects or details about any sensitive information being made public.

The publication of judgments has the potential to conflict with three human rights; Article 6 (the right to a fair trial); Article 10 (the right to freedom of expression) under which open justice is of paramount importance and Article 8 (the rights to respect of privacy and family life).

Whilst it is easier to see the public interest in making the content of tribunal judgments readily available (e.g. to demonstrate the law in practice), it is more difficult to see the public interest in publicising the names of individual claimants, witnesses and others.

The chance of obtaining an order that the judgment should not be published online is remote, but it is possible for a claimant, witness or other named individual in proceedings to apply for a tribunal order that their name should not be published online. The Employment Tribunals already have power to make an order to prevent or restrict the public disclosure of any aspect of legal proceedings (Rule 50 of the Employment Tribunals (Constitution & Rules of Procedure) Regs 2013, Sch. 1. The application may be more likely to succeed where an individual can demonstrate that their Article 8 right to private and family life has been infringed. Depending on the facts, arguments could include damage to reputation and disclosure of medical information.

Faced with such an application, the tribunal must carry out a balancing exercise and whilst the tribunal must give full weight to the principle of open justice and to the right to freedom of expression, the courts must ensure that justice is done, and it may not be where the publication of an employment judgment reasonably deters a party from seeking redress, or would interfere with a fair trial.

In future, we may see more judgments with the names of claimants, witnesses and other named individuals in abbreviated form.


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