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Can an order be made that the judgment be excluded from the online database?

Employment Matters e-update – May 2022

Overview

Probably not.

In the 2019 case of L v Q Ltd., L brought various claims against Q, including for disability discrimination. He made an application to the ET for the hearing to be held in private, for the names of all parties and witnesses to be anonymised and for the judgment to be excluded from the online database. L argued that such orders should be granted on the basis that the case would involve a need for him to lead evidence of a personal nature and that in the absence of such orders he would consider withdrawing his claims. The ET granted all of the orders, including the order excluding the judgment from the online database.

The respondent (employer) appealed against both the judgment and the orders for anonymisation and exclusion of the judgment from the online database.

The matter ultimately came before the Court of Appeal (CA) where the order excluding the judgment from the online database was reversed but the anonymity order upheld. The CA held that the failure to publish the judgment was contrary to the principle of open justice and rejected the argument that publishing the judgment online would breach L’s ECHR right to privacy.

The CA was also scathing about the order that the hearing be conducted in private: “Indeed, although the ET in the present case mentioned the importance of the open justice principle, they then entirely negated that principle by holding a private hearing followed by the handing down of a judgment which they ordered should not go on the Register.”

The examples of orders that can be made by a tribunal listed above are taken from the applicable rules and you will note that there is no mention of an order that the judgment be kept secret by excluding this from the online database. Before the CA, L argued that despite there being no express power to exclude a judgment from the online database, the rule should be construed as permitting such an order.

In the CA’s judgment, it was accepted that there will be some cases in which it would be right to withhold publication on the public database, but such circumstances were difficult to envision and that this was not such a situation:

It is unnecessary to go so far as to say that there will never be a case (other than one concerning national security) in which an ET judgment can be kept secret by not being entered on the Register. I will only say that as at present advised I find it hard to imagine the circumstances in which it would be right…. to withhold publication of a judgment altogether. If there is ever to be such a case, certainly this one is not it.”

This case demonstrates that it is highly unlikely that, save for the most exceptional of circumstances, judgments will be excluded from the online database.

The anonymity order was upheld and it was determined that this was enough to protect L’s privacy rights.

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