Since February 2017, Employment Tribunal decisions from England, Wales, and Scotland have been made freely available online. Today, the website lists over 70,000 decisions, uploaded as individual .pdf or text files, searchable by keywords, jurisdiction code, and date. Accessible with relative ease, the repository provides a veritable treasure trove for researchers interested in understanding the operation of employment and discrimination law in practice, as well as the justice system more broadly.
The publication of employment tribunal decisions is not just of importance to researchers and policy makers: it is a constitutional imperative. Public access to the details of judicial proceedings is a central component of the principle of open justice, intimately related to the common law right of access to a court.
At the same time, however, it is also important to consider key countervailing considerations—in particular, parties’ right to protection of their private lives. While the importance of these principles and their inherent tradeoffs are widely accepted, the way in which they are to be realised in practice is far more contested. Take anonymization as an example. In the UK, it has long been assumed that open justice demands the publication, in all but the most exceptional cases, of the names and personal details of claimants and respondents—as opposed to other European jurisdictions, where the anonymisation of judgments is more often routine. It also has important implications for data protection.
What is at stake here is not simply how to strike an appropriate balance between the public and private interest, however. Rather, the issue is how to ensure that the principles of open, and equal access to justice can be reconciled in practice. Different contexts may well require distinct balances to be struck. Employment Tribunal judgments provide a particularly salient case study in this regard, given the inequality of bargaining power between employer and employee, and the social significance of work to the individual.
Indeed, whilst the publication of data extracted from tribunal judgments serves, at first glance, unequivocally to further the principle of open and equal access to justice, upon closer inspection, the ensuing datasets may also be used to undermine it—from evading employment law and exacerbating existing labour market inequalities to creating new barriers to access to justice. As automated online reputation screening tools begin to play an increasingly salient role in the recruitment process, for example, it is not difficult to envisage how an unscrupulous provider of such services might rely on the tribunals database to facilitate the de-facto blacklisting of applicants who have brought claims in the past.
In our forthcoming article for Legal Studies, we take digitally available Employment Tribunal decisions as a case study in order to explore the promise and perils of publishing tribunal decisions online. Two different sorts of questions are explored. First, what sort of knowledge about the tribunal system and/or legal framework can data extracted from tribunal judgments actually facilitate, and for the pursuit of what sort of purposes can that information be put? Second, what risks of abuse arise from the publication of the judgment data, and how might we prevent or manage those risks?
Our analysis reveals both the real potential of the systematic publishing of employment tribunal decisions online, and the not insignificant risks associated with such publication given its potential uses and abuses. In concluding, we suggest some steps that might be taken with a view to minimising these risks without, however, undermining the potential benefits available.
The first, and simplest, suggestion, is the systematic anonymization of the published data. In order to ensure that the risks associated with the publication of even anonymised data do not outweigh the potential benefits, however, a number of other, more far reaching, steps should also be considered in the long run, including adding a claimant’s litigation history to the list of prohibited grounds on which individuals cannot be refused employment, and opening up the list of protected characteristics in the Equality Act to include ‘analogous grounds’, thereby allowing flexibility in the event that new characteristics emerge as potential grounds for discriminatory decision-making as decision-making processes become more complex and elaborate with the result of improved access to fine-grained data.
The publication of an online repository of Employment Tribunal decisions marks a watershed in open justice. Our discussion is primarily focused on the benefits to academic research, though the potential upsides are by no means limited. At the same time, however, it is important to remember the potential downsides. Concrete steps need to be taken to strike an appropriate balance between these competing considerations, and ensure that this resource is not used in a way that is harmful to the very persons whose interests the Employment Tribunal system exists to uphold.
Zoe Adams is a Junior Research Fellow at King’s College, Cambridge, and an Affiliated Lecturer in law at the University.
Abi Adams-Prassl is a Senior Research Fellow and Associate Professor in Economics at the University of Oxford.
Jeremias Adams-Prassl is a Professor of Law and a Fellow of Magdalen College in the University of Oxford.