The downsides of open justice
This is a difficult article to write because I just know someone will be offended. In fact I often receive letters and emails about my columns, some complimentary and some not.
The worst ones are from the people who are named in my articles because they were a party in one of the cases that I have written about.
I received such a letter last week from a person who was upset that I had referred to them by name in the context of a case where they were found to have been justifiably dismissed. They said that they were trying to re-enter the workforce and of course, the first thing that a prospective employer does is a Google search, which results in their name popping up.
Mine was not the only article about this particular case, but I understand the concern.
This raises a highly contentious issue, namely whether parties to employment disputes should be entitled to name suppression. Generally, the answer is no because New Zealand, like most democracies, operates a system of open justice.
There are limited exceptions, which were demonstrated in a case that was heard in the Employment Court last year.
The case concerned an employee who was seeking to overturn her employer’s decision to suspend her while it investigated allegations of possible serious misconduct.
The staff member also sought name suppression. She cited a medical report, which indicated publication of her name would likely seriously exacerbate pre-existing medical difficulties.
The employee also raised concerns that any publicity might increase the risks posed by an ex-partner she claimed had been engaging in relentless harassment.
The court granted her application. However, in doing so, it made clear that open justice remained the starting point, and only specific adverse consequences would justify suppression.
It is important to appreciate that this is a high standard. Cases like this are very much the exception – embarrassment and a general aversion to publicity are not enough by themselves.
While the principle of open justice is a fundamental tenet of our legal system, it is a significant factor in how employee and employer parties deal with employment disputes.
The reality is that an employee who pursues a personal grievance can essentially be ‘‘blacklisted’’ by prospective employers, regardless of whether they won or lost their case. Unfortunately, this can naturally lead to employee parties accepting settlements that are substantially less than they might get if they went to court, because the stigma of being seen as a troublemaker is too great.
It can also result in employees choosing not to exercise their rights to raise personal grievances or other valid claims, which allows unjustified treatment by employers to go unpunished.
Given the inherent vulnerability of employees in this situation I believe there is a strong case for the courts to consider a broader approach to granting name suppression.
For employers, the risk of being named and shamed is also a significant one. They are not the only ones with access to Google. An employer who is found to have unjustifiably treated staff will soon get a reputation as one to avoid. I have less sympathy for employers in this boat because any adverse reputational impact is generally a result of their own actions.
This issue has become more obvious in recent times because of the accessibility of information. This creates an impetus for the courts to review their approach to name suppression, particularly in the employment context.
In this regard, the principle of open justice is significantly undermined if potential litigants are frightened off going to court altogether.