Navigating Non-Publication Orders
- Business Central
- Oct 24, 2024
- 4 min read
Updated: Nov 5, 2024
In the realm of employment law, non-publication orders are increasingly becoming a topic of interest and concern for employers. These orders, which allow the names of parties involved in an employment dispute to remain confidential, can have a significant impact on both parties. It is important that employers understand how non-publication orders are applied, particularly in light of the recent decision of the Employment Court in MW v Spiga Ltd.
We break down the key points about non-publication orders, focusing on what they mean for employers and offer strategies on how to manage the risks and challenges they pose for businesses.
What is a non-publication order?
A non-publication order is a legal tool that prevents certain information, such as the names of parties involved in legal proceedings, from being made public. These orders are discretionary and can be issued by the Employment Relations Authority (ERA) or the Employment Court. They’re intended to balance the principles of open justice, where court proceedings are transparent, with the need to protect privacy.
For employers, the most pressing question is often, “Why would the name of an employee remain confidential, especially when the employer may feel that full transparency is in the public interest?” Publication of the name of the employee has been seen as a possible deterrent to progressing a personal grievance claim.
Non-publication in employment law
Employment disputes are quite often deeply personal, with reputational risks for both employees and employers. Historically, the ERA and Employment Court favoured open justice, meaning the details of cases were generally available to the public. However, in recent years, there’s been a shift towards protecting employees’ privacy in certain cases, especially if issues of wellbeing are raised.
Key takeaways from MW v Spiga Ltd
The Employment Court signalled a shift, ‘recalibrating’ as the Chief Judge put it, about how it views non- publication orders, moving towards more protective measures for employees.
While open justice continues to be important, the ERA and Court are now more willing to weigh an employee’s right to privacy, particularly if revealing their identity could damage their future job prospects or personal reputation.
Concepts from Māori culture, including Tikanga, were considered in the MW v Spiga case, indicating that cultural factors, too, will increasingly be recognised in decisions about the granting of a non-publication order.
What does this mean for employers?
The MW v Spiga case highlights a growing tendency for the ERA and the Employment Court to grant non- publication orders that protect employees. This means employers should be prepared for the possibility that their employee’s name may remain anonymous in future disputes, even if the employer prefers full transparency.
Where an employee’s name is kept confidential, the employer’s name may still be made public. This creates a situation where the employer is associated with a legal dispute, potentially drawing negative attention, while the employee remains anonymous. Employers must be aware of the reputational risks that come with this.
As the ERA and Court increasingly prioritise the privacy of employees, employers need to manage their expectations regarding how much information will be publicly disclosed in employment disputes. This indicates the default position may be to protect the employee’s identity unless there are compelling reasons to favour transparency.
Why an employer might seek a non- publication order
While non-publication orders are more commonly sought by employees, there are instances in which employers might also benefit from keeping certain details confidential.
For example, if a dispute involves trade secrets or sensitive business information, employers may seek non-publication orders to prevent competitors or the public from accessing this information.
In cases where allegations could unfairly damage the employer’s reputation, even if the claims are unproven, an employer may seek a non-publication order. This helps to mitigate reputational damage to protect the business from undue and unwelcome exposure, especially where, as is often the case, business standing in the community is valued.
While less common, employers can also apply for non- publication orders just as employees can. To successfully do so an employer will need to demonstrate that publishing their name would cause undue harm. On that basis the court has the discretion to grant non- publication based on equity and good conscience. Alternatively, an employer may decide not to object to the granting of a non-publication order lodged by the employee party and instead ask the ERA to provide protection to both parties.
Strategies for employers going forward
As the landscape of non-publication orders continues to shift, employers can take proactive steps to manage the risks and challenges associated with these orders.
Employers should prepare for increased confidentiality and anticipate that non-publication orders will likely become more common. Managing expectations around how much of a dispute can be made public should be part of your risk assessment going forward.
Employers should work closely with Business Central’s consultants at EMA Legal to assess the risks and benefits of seeking non-publication orders in any given case. If there are strong reasons for maintaining confidentiality, whether to protect business information or avoid reputational damage, employers should act proactively.
Wrapping up
The decision in MW v Spiga Ltd reflects an evolving legal approach to non-publication orders in New Zealand employment law. For employers, this means being prepared for increased confidentiality around employee identities and understanding the potential impact on their own reputations.
While non-publication orders can protect sensitive information, they can also create challenges for employers who value transparency. By staying informed and working closely with the Business Central Legal team, employers can navigate these complexities and protect their interests in an ever-changing legal environment.
Staying ahead of these developments will be key for employers looking to minimise risks and ensure that their strategic thinking aligns with employment law.