HM Courts and Tribunals Service has today launched a new online database of employment tribunal (ET) decisions – in a move that is intended to facilitate ‘open justice’, a principle applicable to all courts and tribunals. This follows an announcement last June, but on which further news has been awaited. Decisions of the higher courts, including the Employment Appeal Tribunal are already available online.
A searchable database of ET decisions
The online service covers judgments in both England and Wales, and in Scotland. Decisions can be searched for by date range or by type of claim (‘jurisdiction code’), and there is also a general search facility which can be used to search by name. The original announcement last year indicated that only ‘new’ decisions going forward would be published online and that no decision had been taken on converting existing ET judgments. However, it appears that the online service does include some transcripts going back to 2015.
A new consideration to factor into disputes
Whilst ET decisions have always been publically available, in England and Wales for example, they have until now been available only by an individual personally searching a register at the ET office in Bury St Edmunds or by writing to that office with specific details of the decision sought.
Whilst employers have always had one eye on the public nature of ET hearings and that decisions can ultimately be obtained, employers would now be sensible to factor into any litigation, this new greater transparency. Both employees and the press will more readily be able to access previous decisions made for and against the business. ET decisions also, by their nature, tend to contain more factual detail relating to a business, its processes and procedures and potentially specific evidence given by witnesses. However, for employers operating in Northern Ireland, it is worth remembering that decisions of the Northern Ireland industrial tribunals and the Fair Employment Tribunal are already available online.
A recruitment risk?
Employers will also need to take care in recruitment that any decision to reject a candidate is not influenced by any factors which come to light via this new database – for example, it may show that the candidate has previously issued discrimination proceedings against a former employer or that the candidate has a disability or another protected characteristic. The sensible approach may be to impose a ban on any candidates being vetted via the database. Any information which does come to light should be disregarded and clear reasons given to the candidate as to why their application is unsuccessful.
More developments to come…
Last week, we reported on the government’s outcome of the review on ET fees (see here). Bar some minor changes, the government made it clear that fees are here to stay. All eyes are therefore now on the Supreme Court which, on 27 March 2017, will consider UNISON’s legal challenge to the fee regime. There is also the related government consultation, ‘Reforming the Employment Tribunal system’, which closed on 20 January 2017, which sought views on implementing wider justice system reforms to ETs, including a potential online court.