This was the difficulty faced by the claimant in the case of Ameyaw v PricewaterhouseCoopers Services Ltd. Miss Ameyaw was employed by PricewaterhouseCoopers (PwC) as a senior manager. She brought four claims against PwC which ultimately failed when they got to a final hearing. The early stages of the proceedings included a January 2017 preliminary hearing that was closed to the public and a hearing concerning an application to strike out the claim, which was heard in March 2017.

The judgment for the March 2017 hearing was published online and contained unflattering depictions of Miss Ameyaw’s conduct at the January 2017 preliminary hearing. Miss Ameyaw applied to the Tribunal for an order to (1) ensure the judgment relating to the final hearing would not be published, (2) remove the March 2017 judgment from the online register, and/or (3) anonymise her name in both judgments.

The application was made, Miss Ameyaw said, because she felt online publication of the judgments was harming her ability to find new employment. The Employment Tribunal rejected Miss Ameyaw’s application, so she lodged an appeal at the Employment Appeal Tribunal (EAT).

The first question for the EAT to consider was whether the Tribunal had the power to exclude a judgment from the online register. The EAT found that it did not. The only exception permitted to the Tribunal was to exclude written reasons from a judgment if national security might be affected.

The second question was whether, if a judgment had to be published, should the Tribunal have exercised discretion and anonymised Miss Ameyaw in order to protect her right to a private life under Article 8 of the European Convention on Human Rights (ECHR).

In deciding this point, the EAT first had to consider whether Article 8 was triggered by the circumstances of the case. The EAT found it was not: Miss Ameyaw could have no reasonable expectation of privacy in respect of a public hearing.

The EAT decided to go further and consider whether, had Article 8 been engaged, Miss Ameyaw’s right to privacy would have outweighed the common law principle of open justice and the competing ECHR rights to a fair trial (Article 6) and to freedom of expression (Article 10). The EAT found the Tribunal had decided correctly that there was no basis for overruling the principle of open justice in Miss Ameyaw’s case. [...]]]> http://lawandlabour.com/claimants-right-to-privacy-insufficent-to-prevent-online-publication-of-judgment/feed/ 0 http://lawandlabour.com/chhabra/ http://lawandlabour.com/chhabra/#comments Sun, 19 Jan 2014 18:04:15 +0000 http://lawandlabour.com/?p=1709 The Supreme Court has upheld an injunction granted by the High Court to prevent a disciplinary hearing from going ahead in breach of an NHS Trust’s staff policy on conduct and capability.

The claimant in the case, Dr Chhabra, was a consultant forensic psychiatrist employed by the Trust about whom a number of complaints had been made in relation to her performance at work.  Among the complaints was the allegation that she had breached patient confidentiality by dictating reports and reading documents while on a busy commuter train.

The Trust launched an investigation into the alleged misconduct.  Its policy on conduct and capability specified how it should deal with disciplinary matters and distinguished between three levels of misconduct: minor, serious and gross.  Following the completion of an investigation report, the Trust decided to treat the confidentiality issues as potential gross misconduct and to hold a disciplinary hearing.

Dr Chhabra sought an injunction to prevent the disciplinary hearing from going ahead.  An injunction was granted by the High Court but this decision was overturned by the Court of Appeal.  The question for the Supreme Court to decide was whether the case manager who was investigating the confidentiality issues was justified in convening a disciplinary hearing.

The Supreme Court found there were a number of irregularities in the disciplinary proceedings against Dr Chhabra that cumulatively rendered the convening of a disciplinary hearing as unlawful and a material breach of the doctor’s contract of employment.

These included:

The Supreme Court directed that the Trust carry out a fresh investigation into the confidentiality concerns and be prevented from pursuing the confidentiality issue as a gross misconduct matter.

CASE Chhabra v West London Mental Health NHS Trust, Supreme Court, 18 December 2013

Only 46% of the claimants who were not paid then went on to take action to enforce their award.  Most of the claimants who attempted enforcement preferred to use the Fast Track enforcement Scheme rather than the county courts because it appeared to be the quickest or easiest option.  Enforcement resulted in payment of the award for half of those surveyed.

The survey found that the most common reason for non-payment was that the employer had become insolvent.  Many claimants were unaware that in cases of employer insolvency they can apply to the Redundancy Payments Service if their award related to an unfair dismissal claim.

In 29% of non-payment cases, the employer simply refused to pay the award.  This is a concern given that claimants now have to pay both an issue fee and a hearing fee for bringing a case in the employment tribunal, without any greater reassurance that they will receive payment if their claim is successful.

As a result, the Government is considering introducing a raft of measures to ensure employers pay awards, including:

The survey by the Department of Business, Innovation and Skills, entitled Payment of Tribunal Awards 2013 study, can be accessed at the link below:

BIS Enforcement of Tribunal Awards

The appeal concerned judgment in default given in the absence of the respondent.  When the organisation that employed the claimant, Ms Rojas, became insolvent, the project she worked on transferred to the Brent Association of Disabled People (BADP) who refused to employ her.  She brought claims under TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) and for disability discrimination.

BADP failed to submit a response to the claim or to attend the employment tribunal hearing, which took place in December 2011.  The hearing took place in their absence and judgment in default was given in favour of Ms Rojas.

However, the tribunal allowed BADP four months in which to apply for a review of the default judgment.  BADP were also ordered to provide the tribunal with evidence by a set date.  BADP failed to comply with any of the tribunal’s directions.

A further hearing took place in May 2012.  It was attended by a director of BADP who had no explanation for the organisation’s failure to provide the evidence ordered by the tribunal.  Despite this, the employment judge decided to revoke the default judgment.

Ms Rojas subsequently lodged an appeal at the EAT.  BADP chose not to participate in the appeal process.

The EAT decided that the tribunal judgment should be set aside.  It noted that the tribunal judgment stated that BADP had complied with the tribunal’s directions, but this was incorrect as BADP had failed to submit the requisite evidence by the deadline set by the tribunal.  The judgment had therefore been made on a false factual basis.

The EAT remitted the matter to the employment tribunal for reconsideration of the application.

CASE Elizabeth Rojas v Brent Association of Disabled People Ltd (debarred), Employment Appeal Tribunal, 17 October 2013

Lord Sugar was successful in his defence of the constructive dismissal claim brought by Stella English, a former winner of the BBC television show The Apprentice.  Click on the link to read our April 2013 article on this case.

Following the victory, Lord Sugar set about trying to get Stella English to pay £35,000 towards his legal bill, which had amounted to the substantial sum of £50,000.  However, he failed in his bid.  The Tribunal decided Ms English’s claim was not motivated by malice, therefore she should not have to foot Lord Sugar’s legal bill.

The position in the Employment Tribunal is unlike that in the civil courts where the losing party is often ordered to pay the legal costs incurred by the successful party.  In the Employment Tribunal an order to pay costs is the exception rather than the rule.

To succeed in an application for costs, the applicant will have to show that the other party:

The test is a hard bar to hurdle and most parties fail to prove the existence of one of the above circumstances to the satisfaction of the Tribunal.