Journalists to have greater access to documents referred to in Employment Tribunal hearings – even after the event

Employment Tribunals are public forums (unless special rules apply to make them private). Anyone who has attended a Tribunal hearing as a witness will be familiar with the warnings around this i.e. there may well be journalists in attendance, so be careful what you discuss openly. And most employers are now familiar with the concept that judgments are made readily available online.

Members of the public who are attending a hearing have also for some time been technically entitled to see copies of witness statements and the hearing bundle when attending the hearing. The Employment Tribunal Rules and the Tribunal's Presidential Guidance on General Case Management make it clear that witness statements should be available for inspection during the hearing for members of the public (including the press and media) who attend (unless privacy, restricted reporting orders or national security proceedings rules apply).  

During the pandemic, the Employment Tribunal Rules were amended to confirm that where a hearing is conducted electronically (which is common now), inspection of the witness statements by member of the public can take place at any time (i.e. not just during the hearing).

A recent appeal to the EAT pursued by the Guardian 'Guardian News and Media Ltd v Rozanov and anor' has established that the Employment Tribunal should have provided a journalist with copies of claim form, response form, skeleton arguments, witness statements and documents from a hearing bundle that they had requested, even after the judgment in a matter had been handed down.

The 2018 Tribunal hearing concerned claims for whistleblowing detriment and dismissal brought by an ex-employee  against a private bank. The employee contended that he was dismissed because he had made protected disclosures relating to regulatory compliance in general and in respect of some specific transactions. During the hearing some material was redacted to remove names of clients of the bank and an anonymity order was made.

Some time after the judgment, a journalist requested copies of some of the documents referred to in the judgment (emails in which it appeared that serious deficiencies in the banks anti-money-laundering practices had been alleged) in addition to the claim form, the response, witness statements and skeleton arguments.

The journalist requested these on the basis that matters of legitimate public interest arose out of the judgment and that, journalistically, he wanted to understand the matters in the judgment to ensure fair reporting and to stimulate informed debate.

The Tribunal at first instance ordered copies of the claim form and response be provided but declined to order the bank to provide copies of the emails, witness statement and skeleton arguments on the basis that the Tribunal no longer had copies of them and they would have been available to the journalist had they attended the hearing. The Tribunal felt that the amount of work involved for the the bank to locate the other documents requested rendered the order disproportionate when weighed against the principles of open justice.

The Guardian appealed to the EAT who allowed the appeal on the basis that the overriding importance of the open justice principle was strongly engaged by the journalistic reasons given for the application. Public scrutiny of the justice system and enabling public understanding of how the justice system works and why decisions are taken are two of the key principles of open justice and, in addition, there would be public interest in the underlying subject matter of the proceedings.

The EAT also held that there would be no practical difficulty or cost in providing these documents (which is more accurate when documents are electronically prepared). They therefore directed that the bank should be ordered to disclose the documents sought to the Guardian subject to payment of reasonable copying costs (although expressing the hope none would apply if provided electronically).

This case gives more reason for employers to be concerned about the wider implications of defending employment litigation in full. The prospect that journalists can, for some time after judgment, potentially access the full range of documentation referred to in the hearing risks greater brand/reputation damage, as well as sharpening focus on anonymisation by way of redaction to protect confidentiality. It may also encourage some Claimants to introduce scurrilous claims and documents which may not be central to the issues to be decided in order to leverage potential damage to brand/PR for settlement purposes.

And it comes hot on the heels of the EAT decision 'Frewer v Google' in which the EAT held that a Tribunal could not grant orders for anonymisation and redaction of documents in response to concerns about commercially sensitive information. Google was being pursued by an ex-employee for claims including unfair dismissal and whistleblowing.

The whistleblowing allegations alleged that Google had engaged in anti-competitive practices by favouring two major clients in the trave industry. Google applied under the Employment Tribunal Rules for orders to anonymise client names and redact commercially sensitive information in all documents, including the judgment. The Tribunal approved this request on the basis that the identity of the clients concerns was irrelevant to the issues being determined.

This decision was overturned on appeal to the EAT who felt that the Tribunal had failed to give enough weight to the article rights to a fair trial and to freedom of expression and/or to the strong public interest argument given the allegations about Google's practices. The case was remitted back to the Tribunal who are instructed to consider the matter again using the following steps:

1. Is any material that remains the subject of a dispute relevant in the sense of being likely to support or be adverse to a party’s case?
2. Is the material necessary for the fair disposal of the proceedings?
3. If material does not pass both of the first criteria it should not be before the Tribunal.
4. Only if there is material that is likely to support or to be adverse to a party’s case and is necessary for the fair disposal of the proceedings should consideration be given as to whether some order for privacy or restrictions on reporting. Such an order should only be made if the party applying for the order persuades the Tribunal on proper evidence that such an order is necessary, having given full regard to the open justice principle, including the importance of names being named particularly those of persons who played a significant role in the subject matter of the proceedings, so that the press can report exercising its editorial judgement.

Together these cases mean that employers may (depending on the facts) find themselves having to disclose documents which:

• Contain client names and embarrassing and/or commercially sensitive information as part of Tribunal proceedings which they are not able to redact.
• Which journalists (and other members of the public) can access in detail even after judgment has been handed down.