They do justice differently in the UK. Although the United States based its constitutional right to a jury trial on the right in England, the right to a jury trial no longer exists in England in most civil cases including employment discrimination cases. For employment discrimination disputes, a three-person panel consisting of a judge, a lay person from the employee side and a lay person from the employer side decide the matter. The Tribunal decisions are published in an online searchable repository. This database is the subject of this excellent article, which examines the reason for and problems with such a publicly available searchable vehicle. In addition to giving us the opportunity to learn about this database, the article also leads us to compare the present US system to the UK’s.
The authors recognize that the rule of law there requires open justice, which in turn compels publication of judgments. This is also compelled by statute and related to the common law right of access to the courts. For over five years, Employment Tribunal decisions from England, Scotland, and Wales have been published online and thus been easily accessible to the public including employers. The database has been accessed by, among others, researchers and private companies.
The article poses the question of the extent to which data about judgments should be published. Most importantly, should names be published? The authors point out that elsewhere in Europe, using anonymous information is the usual practice. They emphasize that while the publication of judgments helps ensure access to justice, employers could use names found in judgments to exclude those individuals from jobs. Employees could also be discouraged from bringing claims because such information could be available and used against them in the future. The information could also affect future settlement negotiations with information that may not be complete.
The authors also describe issues with the database, including that all judgments are not published. Because of this, the accessed cases may not be representative of all of the cases. As a result, the database can skew studies, advice to employees, recommendations made to employers and negotiations between parties.
The existence of the database also creates general artificial intelligence (AI) concerns. AI can generate information from the database that can be used against employees, such as predictions on the characteristics of people who bring lawsuits against employers.
The authors go on to analyze whether the current law can adequately protect against abuses of the database. They conclude it cannot and argue for changes to the law. I mention two here. First, they recommend that the names of all parties should not be included. The exclusion of claimants’ names will prevent employers from discriminating on this basis. I do note one possible issue with anonymizing defendants’ names. Without the publication of this information, employers can commit violations that are shielded from easy view. With that said, Tribunal hearings are generally open to the public so there is some opportunity for public viewing of cases and accountability for employers. In addition to the recommendation of excluding names from publication, the authors recommend that employers be prohibited from taking into account an employee’s litigation history.
This study elicits some interesting comparisons between the UK and the US. While there is increasing public access to many employment decisions online in the US, the readily available one-stop shop in the UK is not comparable to what we have in the US. And however useful such a mechanism could be here in the United States, because the US does not utilize Employment Tribunals and instead uses widely dispersed federal and state courts, the creation of such a database would be more difficult in the US to say the least. Additionally, in the US, because over 50% of employment disputes are subject to arbitration, many employment decisions are not published in any form. Comparing the more transparent UK system to ours highlights some of the controversial issues in our own system, including forced arbitration in employment cases.
