Transparency in employment tribunals – does “open” bring “justice”?

An interesting little gem concerning employment tribunals almost passed me by – yet in many cases its implementation has the potential for considerable impact on both claimants and respondents from early next year (unless of course a new government puts paid to the currently suggested timetable).

Historically, responsibility for procedural rules within employment tribunals has been held by the Department for Business & Trade and its predecessor departments. Whereas responsibility for procedural rules in the Employment Appeal Tribunal rests with the Lord Chancellor.   Yet this is about to change.

The Tribunal Procedure Committee (“TPC”) has been preparing to take over the management of rules and procedures of the employment tribunal system, to add to its existing responsibilities for first and upper tier tribunals.  

The TPC has published a consultation paper over the rules the TPC anticipates making after the transfer of responsibility for the employment tribunal.  Buried within the technicalities of the procedure needed to complete this territorial change, is a proposal (ostensibly effective from April 2025) for an amendment to Rule 56: “to provide that case management hearings should be held in public unless there is good reason to keep them in private, in common with other jurisdictions, and in furtherance of the principle of open justice”.

So what previously were discussions, in private but before the judge, over details such as a claimant’s schedule of loss, disclosure, the list of witnesses etc among other matters, will soon be pored over by journalists and interested parties alike. 

As an agency that started our litigation PR advisory business with a high-profile employment claim over 21 years ago and has, in the intervening period, advised on countless employment-related disputes both at the High Court and before tribunals, we can readily see the potential impact of this greater and earlier transparency.  This may not always have positive effect, depending on the client’s perspective.

It seems to us that this changes the dynamics with regard to settlement. If it can become publicly known why the case is being brought, who is being called to give evidence and for what reason, the extent of disclosure required and indeed how much is being sought in terms of financial recompense by the claimants well before the claims have been tested in open court – respondents may have earlier decisions to make vis-à-vis continuing the defence or seeking to close the case down.  Does the ‘open’ principle always mean ‘justice’?  The answer perhaps lies in one’s own standpoint.  

We’d love to hear what employment lawyers think.

Meantime, if you are considering bringing (or are facing) proceedings before the employment tribunal, and wish to discuss the implications of media attention before the final hearing (and considerably earlier in the dispute than had been previously anticipated), drop us a line and we’d be happy to talk the matter through with you and your lawyers.

If anyone wishes to respond to the TPC’s consultation – be quick, it closes next Wednesday 26th June.

By Melanie Riley

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