Posted on: Nov 17, 2020

There are really three options about the naming of parties in employment litigation, vis that there is a total prohibition on naming parties, that there is a default setting where parties are generally not named but an application can be made by a party for names to be published, and finally the publication of names more or less automatically except where a party can persuade the court or tribunal that withholding names is appropriate.

In effect, the second and third options are opposites and they are the options under consideration, the latter being the current position and the former being the position advocated by the symposium. This is an area where my own thinking has developed over time and I am now an advocate for change. I have always thought that the employment relationship is typically the second most important relationship that most of us have, and as a consequence, it has stronger analogies with the Family Court process and procedure than it does with the criminal law and the public policy considerations which effect civil litigation between large corporate players.

The Family Court’s position on naming of parties to anonymise names although the parties themselves are provided with any judgement or order of the Court in their own names.

The same position could apply in both the Employment Relations Authority and the Employment Court or in the alternative, there could be a difference between the position in the Authority on the one hand and the Court on the other, which is the position I favour.

What this would mean is that in the Authority, the general rule would be that parties would not be named, but there would be a right for any party in a matter to make an application to the Authority for that party to be named or indeed for both parties to be named, and the Authority would need to decide whether naming should be made or not and that decision would be informed by legal principle.

Such an arrangement would be the exact inverse of what we are now, in that the current arrangement allows a party to seek name suppression and the Authority is required to consider such an application in accordance with legal principle.

I think here is a good argument for having anonymisation in the Authority and public naming in the Court. This is because the Court will generally be dealing with more high profile matters and it is, I think, a useful aspect for parties to consider when they contemplate challenging a determination of the Authority which on my proposal would be anonymised, and then consideration whether that anonymised Authority determination ought to be re-opened in the public forum of the Employment Court.

Aside entirely from maintaining that the employment relationship is more analogous to familial relationships than it is to commercial relationships, it is also the case that with modern technology, prospective employers and recruiters can easily access the names of employee parties who have successfully sued former employers and/or even access the names of employees who have given evidence for such folk. The effect of using search engines on the internet is to identify the names of employee parties who have been engaged in litigation against their employer and then using that information to inform decisions about subsequent employment. This is particularly a problem for employees who have unusual surnames.

It cannot be right and just for employees in this situation to be precluded from ever working again in this country simply because they have successfully sued a previous (and, by definition, poor) employer.

In the United Kingdom, the law is that such checking of the internet either by prospective employers or by recruiters is illegal, but it seems to me that that is a very difficult provision to police and it would be far easier to protect working people by simply having the default position that their name would be anonymised unless there was good reason for it not to be. Of course, there would always be provision for application to be made to have public disclosure where that was seen by the Authority as necessary and in relation to the Authority’s work in presiding over regulatory matters (particularly claims brought by the Labour Inspector against unsatisfactory employers), it is suggested there should be a default setting that the names of those parties would automatically be published, save where there was an application for non-publication.

 

Words by James Crichton, Barrister and Ex-Chief of the Employment Relations Authority



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