The recent Employment Appeal Tribunal case of Ameyaw v Pricewaterhousecoopers Services Ltd has highlighted the reputational risks that claimants and respondents run in proceeding with litigation in the Employment Tribunal.
Since February 2017, all Employment Tribunal judgements entered on the public register have been published on the Tribunal’s website.
Ms Ameyaw brought a number of claims against her former employer, PWC, all of which were ultimately unsuccessful. In the initial stages of proceedings PWC made an application to strike out her claims on the basis of her alleged ‘scandalous and vexatious conduct’ at an initial preliminary hearing.
The strike-out application was heard in public and so the judgement, which described Ms Ameyaw’s conduct at the initial hearing, was duly published on the Tribunal’s website. Following the final hearing, at which her claims were dismissed, Ms Ameyaw made an application for an order that the strike-out judgment should be removed or anonymised on the basis that its publication infringed her rights to privacy under Article 8 of the European Convention on Human Rights. She gave evidence that since the publication of the judgement she has found it impossible to obtain new work, despite being highly qualified and never having had such issues before.
The Employment Tribunal refused her application, as did the Employment Appeal Tribunal (EAT) on appeal.
The EAT decided that because the strike out application was heard in public, Ms Ameyaw could have no reasonable expectation of privacy in relation to what was decided. Accordingly, Article 8 was not engaged. The EAT then went on to say that even if it was wrong on this first point, Ms Ameyaw’s right to privacy was in any event outweighed by the principle of open justice, the right to a fair trial and the right to freedom of expression. The EAT also made clear that the fact that the unrestricted publication of the record of the hearing might be "painful, humiliating, or deterrent" did not mean that it should not be made public.
This case highlights the difficulty that claimants, and respondents, will have in arguing that the decisions of the employment tribunal should be kept private. Given that it is straightforward to search the records of judgements against the names of particular parties, both sides in litigation run the risk of reputational damage arising from the publication of judgements. Although this arguably has a greater potential impact on claimants, employers could still suffer significant reputational damage as a result of judgements being in the public domain.