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11 March 2019

155: Employment Appeal Tribunal refuses claimant’s application to have judgment removed from online register

Since February 2017, all Employment Tribunal judgments, including preliminary hearing decisions and written reasons, must be published online.

There are only two exceptions to this rule: written reasons may be omitted from the register for reasons of national security; and public disclosure of any aspect of the proceedings may be prevented or restricted if this is necessary in the interests of justice, to protect rights under the European Convention on Human Rights, or to protect confidential information, such as in sexual misconduct or disability cases. In Ameyaw v Pricewaterhousecoopers Services Ltd (PWC), the Employment Appeal Tribunal (EAT) considered a request by a claimant to remove a judgment which referred to her disruptive behaviour at a preliminary hearing from the online register.

Miss Ameyaw had brought various claims against PWC, including sex and race discrimination. PWC applied to have her claims struck out on the basis of what it described as Miss Ameyaw’s ‘scandalous and vexatious’ behaviour at a previous hearing which had dealt with case management matters. PWC’s application was refused and Miss Ameyaw was allowed to proceed with her claims, although all of them were later dismissed at the full hearing.

The judgment dismissing PWC’s strike-out application was published online. It included details of Miss Ameyaw’s behaviour at the earlier hearing, which was described as uncontrolled and unacceptable. Around a year later, Miss Ameyaw applied to the Employment Tribunal for an order that this judgment should be removed from the register, or that she should be anonymised. She claimed that its publication made it impossible for her to obtain new employment and breached her right to respect for privacy under the European Convention on Human Rights. Her application was rejected by the Employment Tribunal, which held that there was no basis to override the principle of open justice and that it had no discretion to restrict publication of a judgment online.

Miss Ameyaw appealed to the EAT, which also rejected her application. The principle of open justice encompasses the requirement that hearings be held in public and that judgments are publically available, as well as the right to freedom of expression. These principles are reflected in the Tribunal rules. Although anonymity might be granted in cases concerning confidential information, sexual misconduct and disability, or other competing ECHR rights, it would only be in extremely rare cases that a judgment would not be published at all. The Tribunal therefore had no power to exclude the strike-out judgment from the register. The EAT also refused Miss Ameyaw’s application for anonymity. Since the hearing had taken place in public, she could have had no expectation of privacy. In addition, the fact that the record of the hearing might be painful or humiliating did not mean that it should not be made public.

This case is a reminder to employers and employees that all judgments and written reasons will be permanently available online, and that a search of judgments can be made against the names of parties or a particular area of employment law. The register also includes details of cases which have been withdrawn or settled. As this case illustrates, the Tribunal does not have the power to remove judgments from the register, and anonymity will only be granted in very limited circumstances. It is therefore important to weigh up the potential risk of reputational damage when contemplating and conducting Tribunal proceedings, particularly given that judgments may contain very detailed accounts of management processes and witness testimony.

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