Too much information?
Academics say that anonymising employment tribunal rulings would benefit workers — while government plans national judgments database
Might the principle of open justice be creating new barriers to justice? Could sacked staff win the battle for compensation — but lose the war by becoming unemployable?
In a forthcoming paper, three academics are calling for new safeguards to protect people whose rights may be at risk from the very employment tribunals they rely on to protect them.
At the same time, the Ministry of Justice is working with senior judges to make judgments more widely available in future.
Limits of open justice
First, the academic paper, Online Tribunal Judgments and the Limits of Open Justice, to be published in the Legal Studies journal. It’s written by Jeremias Adams-Prassl, professor of law at Oxford; Abi Adams-Prassl, associate professor of economics at Oxford; and Dr Zoe Adams, research fellow in law at King’s College, Cambridge. Research done by the two Oxford authors, known respectively as Prassl and Adams before they married, played an important part in the decision of the UK Supreme Court to declare employment tribunal fees unlawful in 2017. The Cambridge Adams is no relation.
Since February 2017, all decisions taken by employment tribunals in England and Wales — and Scotland* — have been published on a government website. There are currently more than 75,000 rulings, giving the parties’ names and full details of their disputes.
Judgments such as these may provide academic researchers with a rich source of data about the social world and the law’s role within it, as the authors accept. Before the rulings were published online, though, analysing them was a laborious task. Now, the list of rulings can be searched by keywords (such as the parties’ names), type of case (such as religious discrimination or national security) and date. And that’s not all:
It is also possible to process online judgments in bulk rather than relying on individual search requests; modern scraping and machine learning algorithms facilitate the automatic harvesting of online judgments and extraction of relevant information from within the judgments themselves with only minimal human involvement.
This sort of information is worth money. Solomonic Ltd is a London-based data analytics company. It says:
We equip lawyers, their clients, funders, insurers and others with the necessary data, analytics and intelligence to enhance decision-making and advice throughout the lifetime of a case. This gives users a significant competitive advantage.
In 2019, Solomonic announced that it was developing a product that would help parties involved in employment tribunal claims “to make more informed, data-backed decisions”. The product was based on analysing thousands of employment tribunal judgments. As the company’s development director explained, the platform would answer questions such as
What are my chances of success?
What damages are likely to be awarded?
Should I try to settle?
How has my judge decided cases like mine before?
How long will it take for my case to be heard?
Litigation intelligence is perfectly legal and widely used; indeed, clients might regard their lawyers as negligent if they fail to take advantage of it in appropriate circumstances. But individuals taking employers to tribunals will need to consider whether paying for this sort of advice is cost-effective.
And what about the analysts who don’t advertise their services online? How could an unscrupulous employer misuse published judgments? The three academics raise a number of concerns:
Blacklisting: there is “a real risk that employers or related third-party organisations might use this easy source of information to effectively blacklist employees based on their litigation history. Not only does this practice allow employers to refuse to hire applicants on grounds that are irrelevant to their capacity to do the job, thereby introducing new forms of discriminatory (and arguably irrational) hiring, it would also potentially discourage employees from bringing employment claims in the first place, out of a fear that to do so might negatively impact their future job prospects.”
Settlement negotiations: these are “potentially highly problematic: in a context of inequality of bargaining power, and with the looming stress of tribunal proceedings, settlement offers potentially enable employer to place undue pressure on vulnerable employees to give up their rights. Given the superior resources at their disposal, it is likely that employers will in a better position to access and understand quantitative information on the chance of tribunal success and the likely level of financial remedies than are employees.”
Evasion: there is “a real possibility that this data… might be used by employers to creatively draft complex contractual provisions with a view to better obscuring the employment status of their workers.”
Hiring: “if details about claimant characteristics are made available to the public, then there is scope for employers to rely on such techniques to predict how likely an individual is to take them to court (to challenge unlawful decisions, and/or engage in litigation in the future) with a view to refusing them employment on that basis.”
As the authors point out, there are already some protections available. But they call for more safeguards, such as:
Systematic anonymisation of the published data. This, they say, would be the most effective remedy against blacklisting because it would prevent data about specific individuals being used as a basis for employment and hiring decisions. It would also avoid a number of the challenges associated with data protection legislation.
Adding a claimant’s litigation history to the list of prohibited grounds on which individuals cannot be refused employment.
Enlarging the list of protected characteristics in the Equality Act 2010 to include analogous grounds. This would permit flexibility if new characteristics emerge as potential grounds for discriminatory decision-making.
As a journalist, I am strongly in favour of open justice. I support limited exceptions to this principle — but only if I can be persuaded that these are necessary.
Any move to limit the publication of employment tribunal judgments would be seen as the thin end of the wedge — with consequences for other courts and tribunals. While the authors deserve credit for drawing attention to a significant problem, there is a distinct risk that their preferred cure will do more harm than the disease.
How many workers have found themselves blacklisted after taking a claim to an employment tribunal? How many have suffered discrimination?
As the authors note, anonymisation of judgments was not something the Law Commission was asked to consider ahead of its report last year on employment law hearing structures. No reforms should be put forward for consultation unless there has been a thorough empirical examination of the legal data analytics industry and its effect on the conduct of litigation.
A national judgment database
In the meantime, news has emerged of what may become a national database of court and tribunal judgments, backed up by a statutory duty to publish.
Recent minutes of the National Archives board refer to a decision by the justice secretary and the senior judiciary “to engage with the National Archives in a partnership project”.
This is understood to refer to a government-funded website that would carry almost all judgments delivered by courts and tribunals in England and Wales. The National Archives already provide an authoritative public database of legislation.
At present, the most important judgments are published by BAILLI, a charity set up just over 20 years ago. Though BAILII does an excellent job with limited resources, it does seem extraordinary that the only free judgments database in the biggest common law jurisdiction relies for its continued existence on voluntary donations from lawyers and minimal temporary support from the Ministry of Justice.
Many rulings are not sent by courts and tribunals to BAILLI or to subscription-only databases such as Westlaw. These limitations were exposed when the government relied on incomplete data to support its proposed reforms of judicial review.
Another example emerged in a consultation paper issued yesterday by the Upper Tribunal Administrative Appeals Chamber, which hears appeals in social security and other cases decided by first-tier tribunals. Though many of these are fact-specific and may be of no wider interest, the paper said that “only a minority of the chamber’s decisions are published on its website and an even smaller number are formally reported in the Administrative Appeals Chamber Reports”.
While subscription services would continue to provide added value, the prospect of a free statutory database was widely welcomed by academics and researchers yesterday. They praised BAILLI for the work it had done over the years in support of open justice while acknowledging that it did not have the resources to provide anything more than a basic publication service.
A statutory database could also be designed to meet concerns about the misuse of personal information included in public judgments, as exposed in the paper reported above.
Judgments.uk — as it might be called — should combine maximum public access with minimum invasion of personal privacy.
*Update: I should have said that the employment tribunal website includes judgments from Scotland as well as from England and Wales. Employment Tribunals (Scotland) is currently a reserved tribunal which means it obtains its administrative support and funding from the Ministry of Justice. Rules of procedure are the same north and south of the border. Rule 67 requires the lord chancellor to maintain a register of employment tribunal judgments for Great Britain — an obligation met by this website.
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