Party may be ordered to provide non-party with tribunal documents after ET hearing (Guardian News & Media v Rozanov and others)

As part of their inherent jurisdiction to determine how the open justice principle should be applied, employment tribunals have the power to order a party to provide a non-party (e.g. a newspaper reporter) with access to documents used at a tribunal hearing, even after the conclusion of that hearing. Where an application for access is made for a proper journalistic purpose, the case for allowing it will be particularly strong, however, there may also be countervailing reasons. The tribunal will have to carry out a fact-specific balancing exercise to assess whether the request is proportionate. Central to the tribunal’s evaluation will be the purpose of the open justice principle, the value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others, according to the EAT.

Guardian News & Media Ltd v (1) Rozanov, (2) EFG Private Bank Ltd and Media Lawyers Association (Intervenor)

 What are the practical implications of this decision?

This is an interesting judgment because it deals with the approach to be taken when a journalist (or indeed any non-party) applies to the tribunal for access to documents after the conclusion of the employment tribunal hearing. This is something that (to our knowledge) does not come up frequently in practice but as and when it does may cause some concern to the parties, especially if there is sensitivity surrounding the documents sought.

In this judgment, His Honour Judge James Tayler gives a detailed account of case law from non-employment contexts, which he applies as equally relevant in the employment tribunal context, on:

• the importance of the open justice principle
• the role of the press as the eyes and ears of a wider public
• the fact that the open justice principle means more than just allowing access to documents during the course of a hearing, particularly when it is unrealistic to expect media organisations to send a journalist to every hearing
• the fact that while it is preferable to make an application for access to documents during a hearing, courts and tribunal’s are able to order access after a hearing too
• the balancing assessment to be carried which should take into account the reason for the request, the open justice principle, any competing factors (e.g. if the Convention rights of others are engaged) and the proportionality of the request.

On the particular facts of this case, the EAT ordered that the respondent provide The Guardian with witness statements, skeleton arguments and documents referred to in the judgment (in addition to the ET1 claim form and ET3 response which had already been provided by the tribunal). It put particular emphasis on the journalistic reasons advanced by The Guardian, which were consistent with the purposes of the open justice principle, namely that access to the documents was necessary to:

• better understand the matters referred to in the judgment
• ensure that any reporting of this matter fairly and accurately reflects all relevant matters at the hearing.

 The EAT found that the inconvenience to the respondent of putting together the documents was relatively insignificant and insufficient to outweigh the importance of the open justice principle. Also, since there was already a Rule 50 redaction and anonymisation order in place, issues of confidentiality and privacy had already been dealt with.

As a result of this case, parties should be aware that non-parties, including journalists, can apply for documents after a hearing. Where the applicant demonstrates a good reason for requesting the documents, such access may be ordered where it is proportionate after a balancing exercise of any competing considerations has been carried out. However, practical difficulties are likely to be considered relatively minimal nowadays in light of the increased digitisation of tribunal documents and the relative ease of sharing them. HHJ Tayler indicated he would expect any reasonable costs incurred as a result of providing copies of the documents (to be reimbursed by the applicant) to be minimal, or if by digital means nil. Also, such costs would not include any legal supervision of carrying out the terms of the order.

Case details

• Court: Employment Appeal Tribunal
• Judge: His Honour Judge James Tayler
• Date: 22 March 2022

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