For the last two and a half years all Employment Tribunals have published their judgments online. The database now contains almost 50,000 decisions. This sounds routine until you know what an Employment Tribunal contains. It is not a court order which lists actions that must be done and by whom, with little context. It includes the full narrative of the facts in the dispute and so much more besides. It gives the legal context and it shares the adjudicating panel’s assessment of all the participators: from the lawyers, the protagonists, their witnesses and even to document and letter writers whose material is read. It can also draw inferences from an absence of information – if you like, it speculates on people’s motives too.
Employment disputes concern people and how they do or don’t work well together. These Tribunal narratives are frank. They are incisive and they shine a very public light into the workplace and onto the people in it, pulling very few punches in the process.
If you need convincing of the wisdom of good employment contracts fairly operated as the best mechanism to avoid this scrutiny, not just of your businesses’ reputation or the boss but of all your staff, look no further than two recent examples of the impact of the publicity of an Employment Tribunal judgment on work life, on professional reputation even extending into home life and family.
A judgment published in September 2018 covered a father ending the working relationship with the family’s nanny housekeeper after only nine months in the context of planned new nursery arrangements for the family’s two children. We know that childcaring needs can alter and that can bring a change in child care support. The difference here was that the nanny’s dismissal for asserted redundancy came against a background of recent future caring planning with the mother and was four days after the nanny told the children’s mother that she was pregnant. The nanny could not get another role once she disclosed her pregnancy to agencies. So, she claimed discrimination due to pregnancy and unfair dismissal against the father. She won and was awarded £18,000 including £6,500 for injury to her feelings by the Employment Tribunal.
A key factor in the failure of the employer father to defend the claim successfully was his assertion in court papers that he had not known of the pregnancy when deciding to end the employment and his failure to provide key documents about his defence. In the course of the Employment Tribunal judgement, considerable personal information about the family, the children and the children’s health was narrated.
This father was no ordinary father. He is also a registered foreign lawyer and a Partner in a global law firm. The Solicitors Regulation Authority which regulates the solicitors profession then brought disciplinary proceedings against him. They were unimpressed that he had not reported to them the Employment Tribunal judgment finding that he had unfairly dismissed and discriminated against his nanny. By agreement between the Regulator and the father, a professional rebuke was issued to the father by reason of the Tribunal case outcome and of his failure to notify the Regulator about it. Another much shorter but still public sanction notice followed and, although it was expressly accepted by the Regulator that his conduct was unconnected with his legal practice and there was no lack of integrity on this part, that fact that his conduct 'caused loss of significant inconvenience to the nanny' was stated as material to their regulatory rebuke, impacting his professional reputation.
Even when recently a claimant asserting disability discrimination in his employment tribunal claim asked for the judgment (should he win) not to be put on the public online Employment Tribunal judgment register because the publicity would force him to abandon his claim, the Court of Appeal has refused this and recognised that the only ground for non-publication of Employment Tribunal judgments is national security.
There is much cynicism about the effectiveness of our under-resourced Employment Tribunal system. However, few doubt the power of social media online publication. Even employers successful in defending claims have experienced reputational collateral damage through the dissemination of its operational practices in an Employment Tribunal judgment. Those still unpersuaded by worthy compliance arguments despite the important forthcoming Good Work Plan changes from April 2020, should beware.
If there were ever a good practical reason to have tailored employment contracts and to operate them effectively, the Employment Tribunal judgment online publication tool is one to be very aware of.
The lesson is to act now to avoid your workplace challenges becoming interesting reading for your competitors. If you have any concerns about your employment contracts, please contact Carolyn Brown.