Employees blacklisted for future jobs
Do employees who sue their employer risk being blacklisted for future jobs? The Employment Court recently considered this issue in a case relating to non-publication of the employee claimant’s name.
The employee (“MW”) challenged a decision of the Employment Relations Authority not to grant a non-publication order. The context for the case related to a claim by MW that Spiga Limited had breached the confidentiality and disparagement provisions in a settlement agreement that had been entered into between the parties.
The Employment Court took the opportunity to review the approach taken by the employment institutions to considering non-publication orders under the Employment Relations Act.
A full bench of judges was appointed to hear the case which focussed on the Plaintiff’s fear that prospective employers would draw adverse conclusions about their suitability and that their reputation within the community and broader family network would suffer if named in the legal proceedings.
The Court issued a majority decision which worked through the previous case law on this issue, including the Supreme Court’s decision in Erceg v Erceg, a 2016 case relating to a challenge by some members of the Erceg family to a Will.
The approach taken by the Supreme Court in Erceg has been consistently applied by the employment institutions and other courts as the test for when non-publication orders should be granted. The starting point for that test is the principle of open justice which the Court said was fundamental to the common law system of civil and criminal justice. It described it as “a principle of constitutional importance” and “an almost priceless inheritance”.
The underlying rationale for the principle of open justice was identified as being to maintain public confidence in the administration of justice and the transparency of court proceedings.
But it was recognised that there may be certain circumstances in which the interests of justice required a departure from the general rule. The standard was stated to be a high one and should only be departed from where the party seeking the non-publication order can show “specific adverse consequences that are sufficient to justify an exception to the fundamental rule”.
The majority finding in the Employment Court was that this remained an appropriate starting point for consideration of the issue and that the general rule of open justice will usually trump private interests.
However in weighing the interests of the parties, the Court accepted that many parties to employment litigation would prefer to keep their identity or other aspects of their dispute private, and that publication of these details was “an unwelcome aspect of litigation”.
The Court also considered the unequal bargaining relationship between employers and employees, the relevance of privacy interests and also the role of tikanga-based legal norms, which it was argued may more readily displace the principle of open justice.
In relation to the consequences to employees of their name being published, the Court said that it had observed employers noting that an employee had a “history” of bringing personal grievances as a way of questioning the validity of the claim currently being faced. It further accepted that there was some evidence that claimants believed being named in a court judgment would impede their ability to obtain new employment, which in turn was likely to put pressure on them to settle matters out of court.
Evidence was produced that Internet searches of decisions were undertaken by some employers who regarded that information as essential to their hiring decisions and more reliable than references.
The Court also accepted that there were cases in which there was evidence showing that publication had impeded a party’s ability to obtain new employment, but did not go so far as to accept that just being named could result in a form of “blacklisting”.
Nor did the Court agree with the submission that there was an increased “chilling” effect, whereby employees were not pursuing claims out of fear that they would be blacklisted.
The Court acknowledged that the landscape had changed substantially since the earlier case law was decided and that social media had created a more challenging environment in terms of non-publication and confidentiality. In particular, the Court noted that the ease of Internet searches was a key concern.
In result, the majority of the Court upheld the tests originally applied in Erceg but said in the weighing exercise, the equity and good conscience role of the employment institutions was relevant as were the application of tikanga principles.
The effect of this case is potentially to lower the bar as to when name suppression will be granted in employment cases. Interestingly, the Chief Judge of the Employment Court, Christina Inglis, issued a separate decision. In it she said that she would have “recalibrated the conventional approach to non-publication” in the employment jurisdiction, finding that there was growing evidence of blacklisting practices and the likelihood of damage to future job prospects.
Chief Judge Inglis said that for employees to face a long term punishment for exercising their legal right to pursue a claim is a deterrent and a barrier to access to justice. She concluded “without access to justice there can be no justice at all (open or otherwise)”.
This article was originally published in The Post
