The much-anticipated online database of Employment Tribunal
judgments is now live, meaning that employees suing their former
employer and employers being sued can now be identified by
journalists and prospective new employers much more easily. This
will make some claimants think twice before taking a case to trial
and some employers will also feel more hesitant about going the
The database remains a work-in-progress, but at the time of
writing there are already 7 pages of judgments publicly available
The judgments available so far seem to be final judgments as
opposed to judgments on preliminary hearings, and it is not clear
whether that will change as more are added.
An interesting feature of the database is that the search
function not only searches against the title of the case, i.e. the
names of the Claimant and Respondent, but also text within the
judgment itself. This means that any names mentioned within a
judgment may also be picked up.
This new feature has a variety of potential implications for
both individuals and employers.
From an individual's perspective, the prospect of having a
judgment on the internet which can be readily searched for by
potential new employers may pressurise them to settle, or to avoid
litigating in the first place. Even if an individual's claim is
upheld, it is possible for certain unflattering details about their
behaviour to remain in the judgment and the very fact that they
have brought proceedings at all will put many employers off paying
them. It is conceivable that this could have a chilling effect on
the number of claims.
As a company, this is an obvious source of bad press. Any bad
behaviour will be available for all to see, and potential new
employees may even search for their prospective employer before
applying for a job in the first place. In discrimination or
whistleblowing detriment cases, it is not unusual for staff of the
employer to be named as individual Respondents. This adds an
additional layer of pressure, as senior mangers' professional
reputations could also be at stake.
Another important factor for companies is the use of
confidential information. Whilst tribunal judgments have always
been theoretically public (in the sense that Employment Tribunal
hearings are held in public and there was a database of judgments
available for inspection in Bury St Edmunds), the full text of a
judgment has never been so readily accessible by so many people.
Any confidential evidence which makes it into the judgment will now
be out in the world at large, and this is an additional risk to
consider. To circumvent this issue, it may be that employers begin
applying to tribunals to ask that such details are kept in a
confidential schedule to the judgment, or something similar.
That said, it is still early days for the database and its
practical impact remains to be seen.
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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