I admit it: I thrilled at the bank’s barrister squirming in London East Tribunal last year as he failed to obtain an order that my client’s whistleblowing claim be held in private – I was an ardent fan of open justice! But a development last month has made me wonder where I draw the line…

From February 2017, HMCTS has published an online database of employment tribunal decisions. This means that anyone can now search, without charge, for any decision of an employment tribunal (although it is currently unclear how many historical decisions will be uploaded) using any term they wish, including the names of the parties concerned. Importantly, the database is not limited to the decisions in final hearings but may also include those in (open) preliminary hearings.

Arguably, this is nothing new: tribunal hearings have always been open to the public and the press and decisions have been available for purchase from Bury St Edmunds.  The reality, however, is that most cases are unreported (and usually unattended, save for a law student or two) and, before being able to buy a copy of a judgment, one needed to know that a case existed . Now potential employees can look up what cases their potential employers have fought, or the cases in which their potential managers have given evidence, while potential employers can check whether candidates for a job have ever taken a claim to a hearing.

While some employers may worry about the PR risk, the predominant use of this database is likely to be by employers weeding out ‘troublemakers’ during the recruitment process. Of course, it would be unlawful victimisation to decline to employ someone because they had brought a discrimination claim but it happens (and is very difficult to prove).

I have advised scores of women who felt that they had been discriminated against on the grounds of their sex but, ultimately, decided not to make such an allegation because they feared it would damage their careers. Those that have brought claims have usually felt confident that, although there might be some gossip, the news would not really leak out until there was a hearing (or, in financial services cases, a fortnight before the hearing when Bloomberg would publish their name on a searchable database available to its subscribers). This generally gave adequate time to settle. Now, many may abandon their claims in fear of a judgment being published following a routine interim hearing.

This raises the interesting question of whether HMCTS is in breach of s112 Equality Act by knowingly helping employers to operate a blacklist system. If anyone would like to instruct me to run that case, I’d be delighted!

In the meantime, here are some probable consequences:

  • Fewer claims
  • More applications for anonymisation
  • More applications by employers for Preliminary Hearings
  • More panic settlements by employees before Preliminary Hearings
  • Demands for compensation by employees who fear they will never work again

We will all, of course, be better informed but I am far from convinced that this latest development in transparency will make for a fairer system.