All will be revealed - open justice in the employment tribunal

Alex Bearman, Partner in the Russell-Cooke Solicitors, employment law team.
Alex Bearman
5 min Read

It often makes sense for employment tribunal litigants to explore whether they might be able to resolve their differences through a settlement. There are plenty of good reasons to favour doing a deal over leaving it to the tribunal to decide, not least of which is the harm which can be done to reputations when all the evidence is laid bare at a public hearing.

The principle of open justice                                                

When a claim goes to trial it will usually be heard in public and be freely reportable. When the written decision is handed down it will be entered onto an online database, making it available to all. This is in keeping with the fundamental common law principle of open justice which exists to ensure that there can be public scrutiny of the way in which courts decide cases and, more generally, enable us all to understand how the justice system works and why decisions are taken.

The principle is not, however, unassailable. The rules of procedure in the employment tribunals enable the parties to apply for anonymity orders or restricted reporting orders in certain circumstances. In deciding whether to grant such an order, as well as the interests of justice generally, consideration has to be given to the rights which individuals have under the European Convention on Human Rights (ECHR) to privacy but also to freedom of expression. However, the cases suggest that concern about embarrassing revelations will not usually be considered a good enough basis for curtailing open justice.

Bank objects to giving documents to a journalist

In Guardian News & Media Ltd v Rozanoc and EFG Private Bank Ltd [2022] EAT 12, the Employment Appeal Tribunal (EAT) was asked to decide whether to grant a request made by a newspaper journalist to be provided with copies of the pleadings, skeleton arguments, and witness statements in the case as well as all of the documents which were referred to in the tribunal’s decision. The original claim concerned whistleblowing and involved allegations that Mr Rozanov had been subjected to detriments because he raised concerns about failures by the bank to comply with regulatory requirements when undertaking certain transactions.

The Guardian journalist, Mr Pegg, made his request some months after the proceedings had concluded, by which time the tribunal had destroyed almost all of the documents it held in the case. As such, in order to give him what he wanted the bank would have to be ordered to retrieve the material from its records. Perhaps unsurprisingly the bank objected. The employment tribunal felt that it would be disproportionate, when weighed against the principle of open justice, to grant Mr Pegg’s request save in respect of the very limited documents which it still held.

The EAT took a different view. It concluded that the reasons given by the journalist, which included a better understanding of the matters referred to in the judgment and a desire to ensure that any reporting would be fair and accurate, strongly engaged the principles of open justice and that the only possible right answer was to force the bank to give Mr Pegg all of the documents he had asked for.

Google attempts to avoid its client being named

Tribunals have the power to make orders which protect the identities of individuals or organisations referred to in proceedings. However, there can be a reluctance to use such powers just because a litigant is concerned about the disclosure of commercially sensitive information. In Frewer v Google UK Limited and others [2022] EAT 34 it was decided that a tribunal had been too quick to grant an order which required the names of all of Google’s clients to be anonymised. The fact that the names being known might not be necessary to decide the issues in the case should not automatically lead to their identities being protected.

The case concerned allegation which Mr Frewer had made about the manipulation of search results to favour certain key clients. The EAT considered that there was a good argument that there was a legitimate public interest in the identities of these clients being known and that this should have been taken into account before the anonymisation order was granted.

Stripper tries to remain anonymous

In some circumstances those bringing employment tribunal claims might wish to try and prevent their identities from being revealed to the public. In another case decided by the EAT, (A v Burke and Hare EA-2020-SCO-000067-DT) it was held that a former stripper who was bringing a claim for holiday pay against the club she had worked for was not entitled to an anonymity order. The claimant argued that if her identity was not protected she would be at risk of stigmatisation because strippers are viewed negatively by wider society. She also asserted that she would be at risk of violence, relying on threats and abusive language she said she had been subjected to when she carried out her work.

The EAT considered that determining the case required a balance to be struck between the claimant’s right to privacy under the ECHR and the principle of open justice. It was held that the possibility of stigmatisation was not a good enough reason to derogate from open justice. It was accepted however that a material risk of verbal abuse and sexual assault could tip the balance the other way. However, in this case there was insufficient evidence to support the finding that these harms were likely to be suffered and so anonymity was not granted. 

Of course not all employment tribunal cases attract publicity. Where there is a risk that some aspect of a claim might be interesting enough to be worth reporting, or a party feels that their name appearing on a publicly searchable database of judgments is something they would wish to avoid, these are factors which should be considered carefully when deciding whether to offer or accept a settlement.

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