HM Courts and Tribunals Service (HMCTS) recently announced that new employment tribunal decisions will be available online from Autumn 2016. Employment Appeal Tribunal decisions and Court of Appeal decisions on employment law are already available via online services, so this new database will simply be extending the ability to search online for first instance judgments.
Discussions with employment lawyers suggest the profession is pretty underwhelmed by this development since first instance decisions are rarely useful as they are not strictly binding. Some have also expressed surprised this is happening given well-rehearsed concerns of the risk of employers blacklisting employees known to have bought claims in the past.
For us the interesting question is how the added transparency will change the way parties think about reputational aspects of an employment dispute.
If respondent employers know their cases are easily traceable, compared to the inefficient paper service to which they are used, will it enhance their appetite for swift settlements in order to avoid (further) publicity or to prevent existing employees from accessing the details? Clearly some parties are particularly publicity-sensitive and others more prepared to take things on the chin. Perhaps settlement decisions will purely be evidence-dependent, but in our view this enhanced transparency is definitely an additional consideration in the litigation mix.
Will this new service dampen the enthusiasm of prospective litigants? Most probably. Some claimants will still be convinced they have nothing to lose reputationally or remain only too happy to have their public day in the sun. Others are likely to be more circumspect. Just like someone’s social media profile, a litigation history, irrespective of result, may prove off-putting for prospective employers as well as to other parties with whom the claimant hopes to establish a business relationship.
In recent years, fewer reporters have been assigned to the courts, being increasingly tied to their desks. Unless litigation PRs were instructed to push a particular story, the odds were that interesting cases would not always get aired. When the new search facility becomes available, both staffers and freelance journalists may more readily find themselves a rich and regular source of material with “winner” and “loser” already assigned. As a result, more parties will have their public reputations to manage and may be unprepared for the exposure. That’s where expert PRs come into the fray. One man’s meat is another man’s poison, as they say.
The Government has introduced various reforms in recent years to reduce the number of claims going before Employment Tribunals – with notable success. The attempt to improve transparency in the justice system may have a contributing effect on this litigation minimisation policy. Enterprising employment lawyers may now look to find novel ways of keeping certain information confidential, to shield against the transparency of the new database. On a practical note, the profession is actually interested to see how cost and time efficient the new service will be. We are told to expect more details in November….watch this space.