Can you keep your employment tribunal claim private?
This was a question raised by disabled employee, Mr L, in the case of L v Q. Since February 2017 the decisions in employment tribunal cases have been held online on a Register available for anybody to read: https://www.gov.uk/employment-tribunal-decisions. When Mr L brought disability discrimination claims against his employer he did not want the judgment containing personal and sensitive details about him to be entered on the Register.
So to what extent can details of an individual’s case be kept private? As usual, the law seems to have produced contradictory answers. Since 1953, the European Court of Human Rights has defended our right to privacy, but a regularly asked question is whether this right allows for the possibility of trials to be held in private. Private trials are certainly prevalent in Family Law when children are involved, but are less common in employment cases, despite the very personal and sensitive nature of the claims, particularly when a disability is an issue.
In this case, Mr L had requested that the hearing be held in private, his name anonymised, and the judgment withheld from the Register. This is because, understandably, L was embarrassed about his disabilities being published into the public domain. Consequently, the Employment Tribunal made the very rare decision to grant his applications, and whether this was the correct decision was later considered by the Court of Appeal.
The Court of Appeal weighed the right to privacy against the principle of open justice. On the one hand open justice is important because it provides a level of transparency to the justice system and allows for the actions of judges to be scrutinised. On the other hand, its importance is sometimes outweighed and needs to be curtailed due to the overriding interests of national security or privacy. The Court in these types of cases is therefore engaged in a balancing exercise.
Anonymisation of L and Q’s identities was not appealed and so the Court of Appeal allowed this decision. However, it noted that it would be incredibly rare for a case’s publication to be completely withheld from the Register, although it did not completely rule it out. As far as L v Q was concerned, though, it determined that publication on the register could not be withheld. It also decided that descriptions of L’s disabilities could not be censored and justified this by the fact that censoring the disabilities would undermine understanding of the judgment; moreover, witnesses called by Q would be aware of the facts and could not be prevented from knowing and discussing the subject matter of the case. Censorship would therefore be a futile effort.
In an employment context, open justice therefore appears to override the right to privacy with regard to disabilities for now. For many this might seem to be a severe, outright breach of the European Convention on Human Rights. On the other hand, the Court allowed L’s identity to be completely anonymised and, as it reasoned, for someone to find his case on the Register and work out that it refers to L, is extremely remote.
While the courts are therefore unlikely to completely grant privacy in employment cases, they are willing to grant it at least do it practically by anonymising those involved.
Further to this, as Bean LJ noted in his judgment – although it is hard to imagine circumstances which would necessitate a judgment being withheld, it cannot be said that there will never be a case in which the judgment is withheld from the Register.
Written by Joshua Troup