Employers are often concerned about adverse publicity arising from employment tribunal hearings. However, for claimants, the chance to have their ‘day in court’ and the possibility of publicising their concerns may be one of their very aims in bringing a claim, which raises issues of privacy and confidentiality.
Therefore, when it comes to Employment Tribunal hearings, there is a conflict between a business’ need to keep sensitive information out of the public eye and the longstanding principle of open justice. As Jeremy Bentham put it in the 18th century: “Publicity is the very soul of justice […] It keeps the judge himself, while trying, under trial.” Employment tribunals are governed by the Employment Tribunal (Constitution and Rules) Regulations 2004. The starting position is rule 26(3), which states that any hearing of a claim should be in public.
The legal system is clear that, in most cases, the policy of open hearings and the right to free speech is more important than commercial sensitivities. However, employers do have options to reduce the potentially damaging effect of a hearing.
Sexual misconduct
The respondent should first consider whether they could make an application for a restricted reporting order (RRO). An RRO restricts what the press can report by preventing identifying factors such as names from being recorded, thus protecting privacy and confidentiality. It sounds like a perfect solution for respondents but, unfortunately, an RRO can only be used in limited circumstances:
- Cases that involve allegations of sexual misconduct; or
- Disability discrimination claims, if the tribunal will be asked to consider evidence that is likely to be significantly embarrassing.
Tribunals have begun to extend the circumstances in which an RRO can be used by interpreting the rules in line with the European Convention on Human Rights, specifically Article 8 and the right to a family and private life.
Constructive unfair dismissal
In F v G [2011] the Employment Appeal Tribunal was faced with a particularly sensitive case involving a care worker at a residential college for disabled students. The college had in place a Relationships and Sexuality policy with special provisions for its severely disabled students. The claimant, who was asked to clean up male students on two occasions, found her task repugnant and resigned, claiming constructive unfair dismissal. The claimant was opposed to an RRO, as she appeared to want to expose the policy to the press. This case did not meet the requirements for an RRO, as sexual misconduct was never alleged. Nevertheless, the tribunal judge was prepared to extend the circumstances to protect the right to a private life of the students and staff. This was approved by the EAT.
Therefore, the circumstances in which an RRO can be used are very limited to particular, fact-specific cases. The judges will be required to weigh up the principles of open justice (now enshrined in Article 10 of the ECHR). Mr Justice Underhill stated in F v G that: “This judgment should certainly not be regarded as sanctioning anonymisation in any case where a party or witness may suffer embarrassment by publication of intimate details of their private lives.”
The other option for employers is a hearing in private. These hearings are rare, although permitted in certain circumstances. A hearing in private could be ordered, for example, if a witness will be breaking a confidence by giving evidence.
Confidentiality clause
It can be seen, then, from the above that publicity shy employers may struggle to keep details of a tribunal hearing out of the press. Therefore, it may well be that the best way to avoid publicity is to settle a claim. A settlement agreement should always include a well-drafted confidentiality clause covering the circumstances of the claim and potential ‘trade secrets’. The agreement could also include a clause preventing the claimant from making derogatory comments about the employer or its staff.
For more information, contact our Employment Law team.
