Open Justice v. Article 8 The Right to Privacy: Are You Protected?

The principle of ‘open justice’ is to provide transparency and clarity within the course of employment litigation.  This principle is used as the focal reason behind online publications of judgements from Employment Tribunal cases. However in some instances, this may conflict with one’s human right to privacy, where it may be argued that the contents of a judgement might prejudice the prospects of obtaining future employment. The question here is whether the right to privacy provides enough protection to override the principles of open justice. This was the primary issue considered in the recent case of Ameyaw v. Pricewaterhousescoopers Services Ltd (2019).

Since 2017 all Employment Tribunal judgements entered on the public register have been published online. Rule 50 of the Employment Tribunal Rules provides power to the Tribunal to prevent or restrict the publication of an order, or any aspect of its proceedings, for any of the following reasons:

1. In the interest of justice
2. To protect the rights of a person by virtue of the European Convention on Human Rights (‘ECHR’); or
3. In accordance with the circumstances outlined under s.10A of the Employment Tribunals Act 1996.

In the case of Ameyaw v. Pricewaterhousescoopers Services Ltd (2019), Ms. Ameyaw commenced proceedings against her employer, Pricewaterhousecoopers Services Ltd, who made an application to strike-out her claims in light of alleged scandalous and vexatious conduct. This issue was considered at a preliminary hearing where the application to strike-out was dismissed, however Ms. Ameyaw’s disruptive conduct at the hearing was referenced in the latter judgement of the case. The judgement analogous to full written reasons were entered on the public register and were made available online. This was proceeded with her claim being dismissed at a final hearing.

Ms. Ameyaw subsequently made an application for an Order to prevent the final hearing judgement to be entered on the register and to remove the preliminary judgement or that her identity remain anonymous in both publications. The Tribunal found no grounds in favour of her application or any grounds to override the principles of open justice, pursuant to Rule 50, and so refused her application. She appealed this decision and relied on Article 8 of the ECHR arguing that the publication breached her right to privacy.

The appeal was dismissed where the Employment Appeals Tribunal (‘EAT’) held that Ms. Ameyaw could not have had any expectation of privacy in this matter. The EAT further stated that based on the facts of this case, the Tribunal was entitled to take the view that the principles of open justice, as well as the right to a fair trial and freedom of expression, outweigh the right to privacy in so far as Rule 50 is concerned, notwithstanding the fact that she was unable to obtain new employment for over a year.

This case acts as a reminder that, although Rule 50 will provide protection against publication if a human right is breached, there is no guarantee that the Tribunal will rule in favour of an applicant based solely on these grounds. It is clear that such grounds must be accompanied by sufficient facts that tip the balance of rights in favour of an applicant. It must be noted that there is a view that publications of judgements is unlikely to hinder ones prospect of obtaining future employment, however online publications are likely to do so. In an age of technology, judgements have become more accessible to prospective recruiters.  This leaves applicants who have formerly been engaged in an employment dispute, at a potential disadvantage. This case makes the case for further legal clarity on the issue.

It is always prudent for one to consider the risks associated with commencing proceedings against an employer, however in light of online publications and the decision of the EAT in this case, employees should exercise caution if they are concerned that this could hinder employability. That is not to say that an employee should be discouraged to take action where an employer has breached an employment right. The Tribunal will always consider a balancing act where conflicting rights are concerned, but employees would be wise to consider this factor if they feel that this could impact negatively on their future employability.