Guardian News & Media Limited v Rozanov & Anor

An employment tribunal has inherent jurisdiction, subject to statute and valid procedural rules, to give a non-party access to documents placed before it and referred to at a public hearing. The fact that procedural rules expressly permit inspection during a hearing does not impliedly prohibit access afterwards.

A journalist’s wish to understand a judgment and report it fairly and accurately advances the core purposes of open justice. A court must conduct a fact-specific and proportionate balance between that value and any demonstrated harm, confidentiality, privacy, practicality or cost. A delayed application is relevant but is not a requirement that the press must have attended the hearing.

Where requested documents are clearly identified, redacted, and readily available, unparticularised inconvenience will not ordinarily outweigh open justice.

The claimant had brought whistleblowing detriment and dismissal claims against EFG Private Bank Limited. The employment tribunal dismissed those claims after a public hearing, subject to redactions and an anonymity order under Employment Tribunal Rules 2013.

Seven weeks after the liability judgment was sent to the parties, a Guardian journalist sought the pleadings, skeleton arguments, witness statements and documents referred to at the hearing. The tribunal supplied the ET1 and ET3 but refused to require EFG to provide the remaining material. It held that open justice was only weakly engaged and that post-hearing disclosure would be disproportionate.

GNM appealed, without challenging the continuing anonymity and redaction protections or seeking the full trial bundle. The issue was whether the tribunal had lawfully refused access to redacted skeleton arguments, witness statements and documents expressly referred to in its judgment.

1. Appeal allowed. The tribunal erred in law by treating the open justice principle as weakly engaged. It focused on whether the subject matter of the proceedings itself raised public-interest issues, while overlooking GNM’s stated journalistic reasons for access.

2. Those reasons included understanding the matters recorded in the judgment and ensuring fair and accurate reporting. They fell squarely within the two central purposes identified in Dring: public scrutiny of adjudication and public understanding of how and why decisions are reached. The tribunal also adopted an unduly narrow view by treating the claimant’s treatment as the only relevant subject of scrutiny. Open proceedings may expose wider matters properly open to public discussion.

3. The tribunal had inherent jurisdiction to order EFG to provide documents directly to GNM. The inspection provisions in the Employment Tribunal Rules 2013 did not confine that jurisdiction to the period of the hearing. EFG had abandoned its jurisdictional objections before the tribunal, and could not revive them on appeal.

4. On the evidence, the balancing exercise was wrong. The requested documents were limited to skeleton arguments, witness statements and documents identified in the judgment. They were to remain redacted under the existing Rule 50 protections. EFG had supplied no particularised evidence of material difficulty or significant cost in retrieving electronic copies. The tribunal gave excessive weight to speculative inconvenience and to the fact that a journalist might have attended the hearing.

5. On the unusual facts, there was only one lawful result. The EAT substituted an order requiring EFG to supply the identified redacted documents, subject only to reasonable copying costs. The EAT added that broader requests after a hearing may require a different assessment, especially where only part of a document was used publicly or disclosure might affect privacy or confidentiality.

• Employment Appeal Tribunal: Allowed GNM’s appeal and substituted an order requiring EFG to provide the identified redacted skeleton arguments, witness statements and documents referred to in the judgment: [2022] EAT 12.
• Employment Tribunal: Refused post-hearing access to the requested documents, while ordering disclosure of the ET1 and ET3 held on its file. It retained its Rule 50 anonymity and redaction protections.