Mixed verdict on tribunals

first_img Previous Article Next Article Mixed verdict on tribunalsOn 16 May 2000 in Personnel Today Comments are closed. Related posts:No related photos. Employment specialists are divided on the recent granting of public accessto detailed tribunal data, reports Stephen OverellIt has been one of those legal rulings that has split employment specialistsdown the middle – one side sucking air through their teeth and wincing en masseat the implications; the other giving an airy wave of the hand and predictingbusiness as usual.On the face of it, whistleblowers’ charity Public Concern at Work’s victoryagainst the Government in the High Court last month simply means moreinformation from employment tribunals. Finding for the charity, Mr JusticeJackson said tribunals are not complying with the regulations of the EmploymentTribunals Act 1996 by providing only the names of applicants and respondents intribunal cases. Instead, he said, the public has a right to know the details ofthe claims, suggesting a right of access to the ET1 form – the form on whichapplicants to tribunals lay out their grievances. For charities and research bodies, this modest little amendment would beuseful. They can research details of interesting cases and monitor theoperation of complicated legislation. Guy Dehn, director of PCAW, argues thatthe ruling would mean putting tribunals on the same legal footing as criminalcourts as regards public access to information. “If people have disputesresolved at public expense, it is right that the public should have access tothem. It is really about open justice. No valid interest is going to beprejudiced by more information,” he said. But the Government disagrees, citing, rather darkly, “technicalreasons” which a Department of Trade and Industry spokesman declined toexplain. It has lodged an appeal. At present, the public already has a right to know the decisions oftribunals. Through the central register, held in Bury St Edmonds, people canfind out who won and get copies of the judgements for a small fee – £10 and £5for every additional copy, posted on receipt of cheque. What they cannot find out is information about the claims. Tribunals listonly the name of the applicant and the name of the defendant, not the nature ofthe claim. Since some 75 per cent of claims never actually get as far as thesteps of a tribunal owing to settlements or changes of heart, there is quite adifference.So, another little victory for freedom of information? Not according to somelegal specialists and employers. Richard Linskell, legal adviser for the Engineering Employers’ Federation,argues that a public right to know details of a claim could encourage anexisting tendency in the press to report the saucy details of a case, andignore both the sober justification and the actual decision. Publicity, afterall, is invariably the part employers dread in defending a claim. The judgementdoes not make a recommendation about ET3s – the employer’s response – althoughPCAW says that in the interests of natural justice, it too should be available.”There is a danger that in having allegations there in black and white,unqualified and untested, the allegations get reported as fact with great andlasting damage to reputations,” said Linskell. “If it does notprejudice the outcome, at the very least it would lead to unbalancedreporting.”If the Government’s appeal fails, the tribunals will have to interpret thejudgement and decide exactly what should be available. If the Governmentdecides it should just be a summary of the claim, then skilled people will beneeded to objectively summarise hundreds of thousands of claims. If, on theother hand, the whole ET1 form becomes public property, here too, there areanxieties.”People in their initial phase of anger often say wild things on an ET1that they later back away from,” said Ben Wood, employment solicitor atLupton Fawcett. Yet he acknowledges that more information could also be useful to employers.”I suppose it might also give them handy information about serialclaimants.”In theory, the document would attract the same qualified privilege that alreadyexists in reporting tribunal cases. Unless a chairman imposes reportingrestrictions for reasons such as national security or sexual or commercialsensitivity, tribunals are open to anyone and what is said to them is public. But Sarah Veale, employment rights specialist at the TUC, argues thatalthough the judgement deserves a cautious welcome, the unions would haveconcerns about consent. “A lot of dirty linen is often washed at tribunalsbut I think there might be legitimate grounds for requiring consent from theparties, especially the applicant. It would not be right if publicity deterredpeople from exercising their rights. Better use of pre-hearing reviews mighthelp deter the weak claims.”In last month’s case, one of the Government’s arguments for preserving thestatus quo was that the tribunal system was set up to be different from normalcivil and criminal jurisprudence, representing fast-track, accessible justice.Therefore, the example of information available in criminal courts, listing thecharges and the plea, was irrelevant. But some lawyers argue that the idea of the tribunal system being separatefrom the rest of the courts framework is becoming increasingly anomalous. Hammond Suddards, the firm which runs the IPD’s legal helpline, takes thisview. “The whole spirit of the times, both in terms of freedom ofinformation and the culture of the Internet, militates in favour of moreinformation being available,” said national head of employment Sue Nixon. Claims: key facts• Between April 1999 and March 2000 there were 164,525 applications toemployment tribunal – a leap of 34 per cent on the previous year when therewere 124,256 • Unfair dismissal remains the biggest claim accounting for some 50,000cases• Protection of wages accounted for more than 36,000 claims and beach ofcontract 29,000• Race and sex discrimination accounted for 10,000 claims between them Source: Acaslast_img read more