The waiting press pack outside the London Central Employment Tribunal is a sure indication that, within a matter of a few hours, somebody’s reputation is going to be irretrievably sullied by the afternoon’s media coverage.
The speed with which these stories are reported in the press is such that often grave allegations of discriminatory or dishonest conduct are published when a party has not even had the opportunity to have the veracity of the allegation tested in cross-examination before the end of the day’s hearing.
Typically, only very limited coverage is devoted to reporting the Tribunal’s decision, especially amongst those publications that have chiefly been responsible for sensationalising the story in the first place. This is a particular problem in high value cases involving several days of evidence when often many weeks, if not months, will have passed before judgment is finally promulgated. By this time, irrespective of the final outcome, what is left hanging in the air is the sense that the accusations that have been made, however jaundiced the reporting may have been, were true.
At present, the Tribunal Rules of Procedure only provide limited circumstances in which a Tribunal can place restrictions on reporting proceedings before it. The requirement for hearings to take place in public reflects the important principle of open justice in a democratic society. The power to restrict reporting is principally only available in cases involving allegations of sexual misconduct, typically sexual harassment. The thinking behind the rule is to avoid deterring women who have potential claims for sexual harassment from bringing a claim for fear of the damaging publicity that may ensue.
Once a restrictive reporting order is in place, the media is not allowed to report the case in such a way that would lead members of the public to identify anyone making or affected by the allegations. Deliberate breach is a criminal offence. Once an order is granted it usually remains in force until both liability and remedy have been determined in the proceedings.
The major defect with the Tribunal Rules of Procedure as they stand is that unless there is an allegation of “sexual misconduct” the Tribunal will not have the power to prevent the press from reporting an allegation made in a Tribunal. Any allegation that an employer has discriminated against a female employee can be reported as can a character assassination of the Claimant, irrespective of the impact that the all too often sensationalised reporting may have on all participants in the Tribunal process.
Viewed from the perspective of the Claimant being the subject matter of often unwelcome, lurid press coverage can lead them to the point of total despair at a time when they are usually already mentally frail and also worn down by the large financial gamble in taking on an often better resourced opponent. However a further serious consequence of being the subject matter of newspaper headlines is that a Claimant’s future employment prospects at a high level will almost certainly be extinguished and they will have only limited prospects for mitigating their loss.
From the employer’s perspective, it is often a tempting prospect to provide the waiting court reporter with an advanced copy of their skeleton argument or witness statements to ensure that favourable press coverage is secured, even before the evidence is given. It is an understandable urge to see your accuser publicly humiliated in the press. However, it is this outcome which an employer in the dock should fear the most as they will be the party that has to pick up the tab for a loss of career earnings if the Claimant’s accusations are upheld.
There is no evidence to suggest that the manner in which an ongoing Tribunal case is reported does affect how the Tribunal determines issues on liability. However, when it comes to the award of compensation the Claimant’s ability to secure future employment is a key factor. The Tribunal cannot therefore ignore the severely diminished employment prospects that will result from adverse press coverage that has taken place as a result of the Tribunal proceedings.
Furthermore, the threat of sensationalised media coverage of Tribunal claims does nothing to encourage deserving Claimants to come forward and bring their case and it often also leaves employers with a good defence with little option but to settle a claim in order to escape lurid publicity. Neither of these outcomes is desirable.
The time has now come to look again at the rules governing restricted reporting orders. All parties should be able to apply to have such an order granted, at least for a limited period of time, where it is known that a serious allegation is to be made during Tribunal proceedings and which may, given the nature of press reporting, fundamentally damage their reputation. It can no longer be in the public interest that the normal rights of the press to communicate information to the public should remain unrestricted in these types of cases, at least until both liability and remedy have been determined.