The Facts

Mr Rozanov was employed by EFG Private Bank Ltd. He claimed in the employment tribunal that the bank had subjected him to detriment and dismissed him because he was a whistle- blower.

The parties agreed that client names would be redacted and an anonymity order was made in relation to the names of four individuals. A selection of documents which would identify one of the bank’s clients were included in a confidential annexe to the hearing bundle. Journalists attended the hearing and copies of witness statements were available for inspection.

Mr Rozanov’s claim was rejected.

Four months after the last day of the hearing, a journalist from Guardian News & Media Ltd wrote to the employment tribunal requesting copies of various tribunal documents, including pleadings, skeleton arguments, witness statements and documents which had been referred to in the tribunal’s judgment. The journalist set out the reasons why he believed that the tribunal decision raised matters of legitimate public interest, including (according to the journalist) that there was evidence that EFG had breached anti-money laundering regulations, that an employee had tried to facilitate a transaction of $100m sourced from associates of a Chechen warlord who had been accused of human rights atrocities, and that senior management had failed to take action when evidence emerged that an employee was in breach of anti-money laundering regulations. The application also explained the journalistic reasons why the journalist was requesting the documents. EFG objected to the application. Mr Rozanov did not.

In reaching its decision the tribunal considered the principle of open justice, which is that it is of “fundamental importance that justice should not only be done but should manifestly and undoubtedly been seen to be done”. The tribunal considered that the principle of open justicewas only engaged in this case to a very limited extent. The tribunal ordered copies of the ET1 and the ET3, which were held by the tribunal, to be provided to the journalist, commenting that it was not unduly onerous for this to be done.

However, the tribunal did not require EFG to provide the other documents which had been requested, holding it to be disproportionate, particularly given the inconvenience to EFG in retrieving the documents, when weighed against the principle of open justice. The tribunal commented that it would have been simpler had the Guardian attended and made its request at the original hearing.

The Guardian appealed successfully to the EAT. The EAT disagreed with the tribunal’s view that the open justice principle was not strongly engaged. It considered that the tribunal had been given proper journalistic reasons for the application and that the public interest in the underlying subject matter of the proceedings should have weighed in favour of granting the application. The EAT also considered that the inconvenience to EFG was minor, and that the tribunal’s decision to give more weight to this inconvenience that to the principle of open justice was perverse. The EAT therefore considered it appropriate to order that the documents were provided to the Guardian, expressing the hope that this could be done electronically to minimise cost.

What does this mean for employers?

This, together with the case of Mr R Frewer v Google UK Limited and Others also reported this month is an important development in the principle of open justice in the context of tribunal claims.

Following this case, employers defending tribunal claims should be aware that witness statements and other sensitive tribunal documents may be accessible to the public long after a hearing has concluded.

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