Anonymity ruling in employment tribunals upheld
A decision by the Government to keep the identities of those involved in employment tribunals under wraps has been upheld by Information Commissioner Gitanjali Gutierrez.
Ms Gutierrez found that decisions of the Employment and Labour Relations Tribunal fell outside the scope of the Public Access to Information Act, so the parties’ identities did not have to be divulged in response to a Pati request from The Royal Gazette.
She wrote in a decision due to be published on Friday that the Ministry of Economy and Labour headquarters was “justified to refuse access” to non-anonymised decisions of the tribunal.
She noted, however, that some decisions had been republished online since the Gazette’s request after the parties were asked by the public authority “what information they wished to conceal”.
The Gazette revealed last September that a raft of decisions made by the employment tribunal had finally been made public more than a year after a change in the law required their disclosure.
At the time, the ministry anonymised all the decisions it published online, meaning employers found to have mistreated staff had their identities protected.
Now, of the 35 decisions so far published online, five include the name of the employer.
There are two decisions that name both parties, three that name only the employer, 22 that have both parties’ details anonymised and nine decisions where only the employee is named.
The ministry headquarters said in its initial response to the Gazette that there was no need for a Pati request because publication of the decisions was required under the Employment Act 2000.
It said future decisions would be "readily available to the public“ and would be published within a year of the matter being heard by the tribunal.
The Gazette then clarified that it was seeking non-anonymised decisions, but the ministry’s acting permanent secretary refused in November last year, insisting the records were exempt under Section 4 (1) (a) of the Pati Act, as they related to the “exercise of judicial or quasi-judicial functions” by the tribunal.
Ms Gutierrez agreed with that reasoning in her decision, stating: “The tribunal’s decisions fall squarely within its statutory functions to determine the matters referred to it.
“The Information Commissioner is satisfied that ministry headquarters was justified to refuse access because the requested records fall outside the Pati Act …”
The acting permanent secretary wrote in November that since denying the Gazette’s request, the ministry had been “advised of the correct application of the legislation”.
She said the tribunal had to tell the Minister of Economy and Labour when it made a decision and the minister must make the decision public within 90 days.
If the parties wished to conceal any matter — including their involvement in the dispute — they had to inform the tribunal before publication of the decision.
The acting permanent secretary wrote: “Since June 1, 2021, when the publication of decisions became effective, parties had not been advised by the tribunal that their decisions will be published nor provided with the opportunity by the tribunal to conceal information.”
She said that had since been rectified and all parties had been given the chance to confirm what information they wished to conceal.
“Accordingly, the decisions have now been republished to the government portal to take into account the requests of the parties involved.”
Last year, employment lawyer Juliana Snelling questioned whether employers found to have “deliberately breached their clients’ rights” should be protected by anonymity.
She said: “The [Employment] Act as amended in June 2021 is such that anonymity is not mandated nor can it be presumed.”