The Resurgence of ‘Open Justice’: Employers Beware!

The open justice principle is a rule which is often seen as not only desirable but necessary in well-established liberal democracies. In a nutshell, it provides for the openness and transparency of the court process. There are many purposes of the open justice principle. One purpose is to allow for the scrutiny of judicial decisions, and another is to give the public trust and confidence in the legal profession and wider justice system. It is very important that not only is justice done, but that it is seen to be done.

This is all very well, and is based on the best intentions, however such a principle comes into sharp conflict with another principle of significant importance to clients, namely confidentiality. On the one hand, the public need to be able to understand the basis of judicial decisions and interrogate the facts for themselves, but on the other hand, parties to the proceedings often do not wish for their dirty laundry to be aired. This is especially the case for Respondents in employment tribunal proceedings.

This article focuses on two recent Employment Appeal Tribunal (‘EAT’) cases which have cast a spotlight once again on the principles of open justice, namely i) Guardian News & Media v Rozanov and Others (‘the Guardian case’) and ii) Frewer v Google UK Ltd and Others (‘the Google case’).

The Guardian case

The main issue in this case was whether the Respondent (a bank) should have been required to provide copies of skeleton arguments, witness statements and documents requested by a journalist at the Guardian, after the conclusion of the hearing.

In the first instance, the Employment Tribunal (‘ET’) considered that the open justice principles were only engaged to a limited extent and that the making of such an order would have been disproportionate in terms of costs. However, the EAT, overturning the decision, considered that the ET had erred in not giving due weigh to the open justice principle. The journalist had given the ET legitimate journalistic reasons for the application, such as the fact that the press have an important role in reporting the judgements of courts and tribunals, and the EAT considered that the wider public interest in the underlying subject matter of the proceedings was something that pointed to the granting of the application.

What about confidentiality? The Respondent argued that providing the journalist with copies of skeleton arguments, witness statements and the documents referred to in the tribunal’s judgement would breach confidentiality and Article 8 rights under the European Convention on Human Rights (ECHR). The EAT disregarded such concerns, noting that personal information was not at risk, given that these issues had been dealt with by redaction and by the Rule 50 order. As a relevant aside, a Rule 50 order is an ‘anonymity order’ which serves to redact and remove the names of clients/individuals in certain circumstances. However, even when granting such an order, the tribunal must give full weight to the principle of open justice (as will be explored in the Google case).  

What about the Respondent’s practical concerns of providing such documents? They sought to argue that there would be ‘significant costs’ involved in retrieving such documents. The EAT disagreed and held that subject to ‘reasonable copying costs’, such documents should be provided. It was also hoped that these documents could be provided in electronic form at ‘no cost’.

The Google case

The key issue in this case for this article was whether Google should have been allowed to anonymise the names of its clients and whether ‘commercially sensitive and irrelevant’ information could be redacted in an ex-employee’s claim for automatic unfair dismissal for having made protected disclosures.

At first instance the ET allowed Google’s applications for such anonymisation and redaction. On appeal by the ex-employee, concerning the anonymisation point, the EAT held that the ET did not have due regard to Article 10 ECHR which holds that everyone has the right to freedom of expression. The EAT also asserted that there is a public interest in the press being able to report the names of the individuals involved, notwithstanding the fact that the tribunal can do its job without the naming of such individuals. Their reasoning was that if the lack of relevance of the names of the persons involved was sufficient to justify the granting of anonymity, then anonymity could be granted in all cases. This would clearly be an unacceptable position given the prevalence of the open justice principle.

Interestingly, one of the ex-employee’s assertions was that Google had acted in an anti-competitive manner in allowing two clients to benefit from a disproportionate number of results on google searches. Therefore, given the wider public importance of this assertion and the recent trend to knuckle down on anti-competitive commercial practices, the EAT considered that the public would have an interest in knowing the identity of such clients. The task of the ET was to balance the right to a fair hearing and the right to the freedom of expression on the one hand, and issues of commercial confidentiality on the other. With respect to commercial sensitivity, the EAT noted that one should draw a distinction between commercially sensitive data and (personally sensitive) confidential data. The former being less deserving of protection than the latter.

What can companies (the Respondents in tribunal proceedings) learn from these cases?

A key lesson is that the tribunals do not have a large appetite to protect the confidentiality of Respondents. Where confidentiality and open justice principles come into conflict, ET’s will favour open justice. What this means is that if a Respondent decides to proceed to the final hearing, they should expect that third parties, such as journalists, may be able to get their hands on a vast array of documents, including witness statements. Not only will this likely have negative brand consequences for the specific Respondent involved, other individuals and companies sucked into the claim may also face adverse PR consequences.

Instead of taking such a risk, companies may consider the ‘confidentiality haven’ settlement agreements (through Acas). However, depending on the precise circumstances of your case, settlement may not be appropriate. For example, a particular Respondent may not wish to encourage a ‘settlement culture’ within their organisation. These considerations are not to be weighed lightly, and the ultimate tactical decision on whether to ‘go the distance’ to the ET will come down to the specific facts of the case.

What do you need to be doing now?

If your business is currently defending a claim, or is anticipating one, think carefully about the implications of seeing the claim through to a final hearing. If you need advice relating to an employment claim of any sort and you are not sure how best to proceed, please do get in touch with a member of our experienced Employment Team who can assist you through the process. 

Here are the links to the Guardian case and the Google case if you would like to read up on them in further detail.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.