Online record of tribunal judgments – the principle of open justice overrides claimant’s right to privacy

The following case is a useful reminder to both employers and employees that for the past couple of years all judgments and written reasons will remain online indefinitely. Therefore, parties involved in Employment Tribunal proceedings may need to take this fact into account when considering whether they may want potentially unflattering or critical comments about them being publicly available.

There are only limited circumstances when this may not happen; reasons of national security or if it’s considered necessary in the interests of justice, to protect rights under the European Convention on Human Rights, or to protect confidential information.

In a recent case (Ameyaw v Pricewaterhousecoopers Services Ltd) the Employment Appeal Tribunal had to determine an application by a claimant to remove a judgment which referred to her disruptive behaviour at a preliminary hearing from the online register.

Ms Ameyaw had brought an employment tribunal claim against her former employer, PWC, for various claims including sex and race discrimination. PWC applied to strike out her claims due to alleged “scandalous and vexatious conduct” at a preliminary hearing. The strike out application was unsuccessful and her case proceeded, although she was ultimately unsuccessful at the final hearing. The judgment and full written reasons which dismissed PWC’s strike out application was published on the online register.

Ms Ameyaw then applied for an order that the final hearing judgment should not be entered on the register, the strike-out judgment should be removed and/or that she should be anonymised in both judgments. Her application was refused and so Ms Ameyaw appealed to the Employment Appeal Tribunal on the ground that the online publication of the strike out judgment breached her right to privacy under the European Convention on Human Rights.

The Employment Appeal Tribunal dismissed Ms Ameyaw’s appeal. HHJ Eady QC held that the principle of open justice did not only require that hearings should take place in public, it also required that judgments would generally be publicly available. Although the judge said that anonymity might be granted in some cases concerning confidential information, sexual misconduct and disability or other competing ECHR rights, this would only be in rare cases. As such, the EAT held that the employment tribunal had no power to exclude the strike-out judgment from the register. The EAT also refused Miss Ameyaw’s appeal for anonymity on the basis that as the hearing had taken place in public, she could have had no expectation of privacy.

Darren Tibble, Partner