This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Comprehensive guide to confidentiality in tribunal proceedings in England and Wales, explaining public hearings, privacy and anonymity orders, protection of settlement negotiations, document disclosure and practical guidance for handling confidential information.
Confidentiality in tribunal proceedings is a complex legal topic in England and Wales. Tribunals generally operate openly so that hearings and judgments are publicly accessible, reflecting the principle of open justice. However, confidentiality can arise in several contexts - including privacy protections within tribunal procedure, restrictions on use of settlement discussions as evidence, and the handling of sensitive information such as witness identities, medical records or commercial data. This article explains how confidentiality operates in tribunals, the legal rules that affect it, when private hearings or anonymity orders may be granted, how confidential discussions are treated as evidence, and practical guidance for participants.
The Principle of Open Justice
Tribunal hearings, including employment tribunals, are ordinarily public. The public and media may attend and report on hearings, and published judgments appear on government registries where accessible online. Open justice promotes transparency in the legal system and accountability of decision‑makers. Confidentiality exceptions exist but are limited and subject to legal controls.
Legal Basis for Confidentiality in Tribunal Proceedings
Rule 49 (Privacy and Restrictions on Disclosure)
The Employment Tribunal Procedure Rules 2024 include Rule 49, which allows tribunals to prevent or restrict public disclosure of aspects of proceedings where necessary:
- in the interests of justice;
- to protect rights under the European Convention on Human Rights, such as privacy;
- or to protect confidential information as identified in statute.
Rule 49 orders balance confidentiality against open justice and freedom of expression, meaning applications must justify the need for restriction.
Statutory Authority: Employment Tribunals Act
Section 10A of the Employment Tribunals Act 1996 and related procedural rules permit the tribunal to limit disclosure of confidential information or hold hearings in private when information cannot be publicly shared without causing harm - for example where disclosure would violate another legal prohibition or damage commercial interests.
Types of Confidentiality Orders
Private Hearings
A tribunal may order that a hearing (or part of it) be conducted in private. This is rare and only used where compelling reasons exist - for example, to protect vulnerable individuals or confidentiality of information crucial to justice. Tribunals must consider open justice and freedom of expression before restricting public access.
Anonymity and Restricted Reporting Orders
Under Rule 49 and related practice, tribunals can grant:
- Anonymity orders: preventing publication of names or identifying details of parties, witnesses or others involved;
- Restricted reporting orders: limiting reporting of particular facts or aspects of the case, for example in matters involving sexual misconduct or disability.
Tribunals exercise discretion based on the context, potential harm, vulnerability of participants and ECHR rights such as the right to privacy and freedom of expression.
Confidential Settlement Discussions and Evidence
Confidential Negotiation Protection
Discussions during settlement negotiations - including offers to resolve disputes - are usually treated as confidential and cannot be used as evidence in subsequent proceedings. Two principles ensure this:
- The without prejudice rule applies where parties genuinely try to settle an existing dispute. These communications are generally inadmissible at tribunal or court.
- Section 111A of the Employment Rights Act 1996 protects pre‑termination negotiations in relation to unfair dismissal and constructive dismissal claims, even where no dispute has yet crystallised.
Both protections aim to encourage open settlement discussions without fear that offers or admissions will later be used against a party.
Exceptions to Confidentiality Protections
These protections can be lost if there has been improper behaviour or unambiguous impropriety during negotiations, such as discrimination, fraud, threats or intimidation. If such conduct occurred, a tribunal or court may allow substitute negotiations to be used as evidence.
Settlement agreements and COT3 agreements may include voluntary confidentiality clauses, specifying what information is confidential and who may see it, but these clauses cannot restrict statutory rights such as whistleblowing.
Document Confidentiality in Tribunal Process
Confidential Information in Disclosure
Parties must disclose relevant evidence before hearings. Confidentiality does not mean that documents marked “confidential” are automatically withheld: tribunals may order sensitive disclosures with appropriate protections, such as redaction or restricted access, to balance relevance with privacy.
Legal Privilege
Certain documents are not disclosable due to legal privilege:
- Legal advice privilege: communications between a party and their legal adviser for the purpose of advice.
- Litigation privilege: communications created for the purpose of pending or likely litigation.
Document protection due to privilege and confidentiality must be properly identified and discussed with legal advisers to ensure compliance with tribunal disclosure requirements.
Practical Steps for Confidentiality Requests
Applying for Privacy or Anonymity Orders
Parties or witnesses seeking confidentiality should:
- make applications as early as possible in proceedings;
- clearly state the reasons for privacy, such as vulnerability, safety, sensitive personal data or commercial secrets;
- support requests with evidence where possible, including potential harm from public disclosure.
The tribunal will balance confidentiality against the open justice principle, requiring compelling reasons for restricting public access.
Handling Sensitive Evidence
Where evidence contains sensitive material (such as medical records), parties can request redaction or special handling under case management powers. Tribunals may order separate bundles for public hearings to avoid unnecessary exposure of confidential data.
Risks and Limitations
Confidentiality protections are not automatic. Tribunal applications for private hearings or anonymity can be refused if the tribunal considers that open justice and freedom of expression outweigh privacy concerns. Confidential settlement negotiations and privileged communications may still be subject to challenge where improper conduct is alleged. Careful preparation and awareness of procedural rules help protect sensitive information without undermining procedural fairness.
Summary
Confidentiality in tribunal proceedings in England and Wales is governed by a balance between the principle of open justice and the need to protect legitimate privacy interests. Tribunals can make orders limiting public disclosure, holding parts of hearings in private or anonymising parties and witnesses under Rule 49 of the Employment Tribunal Procedure Rules. Settlement negotiations and pre‑termination discussions are generally protected from being used as evidence by application of the without prejudice rule and section 111A of the Employment Rights Act 1996. Privileged communications and sensitive documents may also be protected during disclosure. Participants should prepare early applications for privacy orders with clear justification, and understand that confidentiality protections are discretionary and subject to legal tests. Effective management of confidentiality helps preserve privacy while ensuring transparency and procedural fairness in employment and other tribunal proceedings.
