The principle of open justice means that proceedings in the employment tribunal are open to the public and may be reported in the press. It has been described as of “fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done”.
Open justice enables public scrutiny of the way in which courts decide cases so that the public can have confidence that the justice system is working. However, for the parties involved, the publication of what may be regarded as personal and sensitive information may not be so welcome.
In Guardian News and Media Ltd v Rozanov the Employment Appeal Tribunal (EAT) considered the application of the open justice principle in relation to a journalist’s request for documents concerning a failed whistleblowing claim.
Mr Rozanov had been dismissed from his role as an international market co-ordinator for a private bank. He claimed the dismissal was because he had made several protected disclosures in relation to regulatory requirements for certain transactions. As the evidence involved confidential transactions with clients prior to the hearing it was agreed that the names of the bank’s clients should be redacted from documents to retain their anonymity.
Rozanov's claim was unsuccessful. It was held that while he had made protected disclosures his dismissal had been for other reasons.
Four months after the hearing had concluded, a reporter for the Guardian who had been present at the tribunal requested copies of the pleadings, witness statements and other documents on the grounds that the case raised matters of legitimate public interest. In particular, he considered that the evidence suggested there had been repeated breaches of anti-money laundering regulations. The request was stated as being made to better understand the matters involved and to ensure that it was reported fairly and accurately.
The bank objected to the request and the employment tribunal in the main refused it.
The EAT held that the journalist’s requests should have been allowed and the documents requested provided. The documents had been expressly requested for “journalistic reasons” and the principle of open justice was strongly engaged in these circumstances.
The public interest in the underlying subject matter of the proceedings was something that should have carried considerable weight in favour of granting the application. It was also relevant that the request had been limited to only documents referred to in the judgment. It followed that any concerns relating to the right to privacy or confidentiality had been dealt with by the redaction of names.
The costs and inconvenience that would be incurred when complying with the request may be taken into account. However, objections based on the practical difficulty or cost in providing these documents were limited due to the electronic format used.
The decision highlights the extent to which media reporting may be a further issue to be considered when dealing with claims in the employment tribunal, particularly where there are allegations of a sensitive nature being made.
Employers will need to take into account that while a claim may have been successfully defended it will not necessarily prevent potential reputational damage being caused by subsequent reports in the press.
While arguments may be raised relating to the need for anonymity to protect confidential information where appropriate, the employer will have a difficult task showing that such is necessary.
Additionally, the fact that documentation is being increasingly processed in electronic format for employment tribunal proceedings means that it will be more difficult to challenge any requests on grounds of cost or inconvenience.
Merran Sewell is an employment partner at Gateley Legal