Privacy and publicity: seeing justice done in the Employment Tribunal
21 September 2022
It is now almost a century since Lord Hewart’s famous comment that “justice should not only be done but should manifestly and undoubtedly be seen to be done”. This principle of natural justice has established an open legal process, with public access to judicial hearings an important hallmark of a fair society. But how this principle applies in practice in the Employment Tribunal, particularly in the digital age, can be a difficult question.
In the Employment Tribunal (ET), open justice is the default. This is reflected in the ability of the public to attend many types of hearings, view documents, and find out about the outcome reached at the end of the process.
This openness is not always welcome for the parties. The claimant in a case may not want publicity - whether to protect their reputation and future job prospects, or because the case involves embarrassing or sensitive personal information. Similarly, the respondent may want to protect its own reputation, the reputation and names of witnesses, managers, customers and clients, or confidential information contained in documents and witness statements.
There are various circumstances in which the need to protect privacy and confidentiality can override the principles of transparency and openness. This article looks at the points during the ET process where information about a case and the parties involved in it may become public, and when various exemptions to the open justice principle may apply.
What is the open justice principle?
Before we consider the question of public access to ETs, it is helpful to understand what the underlying purpose and meaning of the open justice principle is.
In the 2019 case of Cape Intermediate Holdings Ltd v. Dring, the Supreme Court distilled this principle into 2 key purposes:
- enabling public scrutiny of judicial decisions and thereby ensuring public confidence in that process; and
- enabling the public to understand how the justice system works and why decisions are taken.
The ET has the power to make orders which limit open justice, but as we explain below such orders are increasingly the exception rather than the rule.
Publicity during the Employment Tribunal process
Before the hearings
The parties’ engagement in a formal legal process starts well before any actual hearing. This often raises the question of whether the claim (“ET1”) and defence (“ET3”) are public documents, and whether the parties’ names will be in the public domain from the outset.
Although there is a public register of all ET judgments (as discussed further below), this only publicises the outcome of the process. The good news for publicity-shy parties is that there is no equivalent register of claims which have been lodged. The ET1 and ET3 documents do not become publicly available the moment they are sent to the ET. They only become accessible to non-parties once included in a bundle of documents for a public preliminary hearing or a final hearing.
At the hearings
Some details about ET hearings are published on a publicly accessible website a few days before they are due to happen. The CourtServe service provides a daily “cause list” for every ET centre, which lists the public hearings taking place the next day. It also provides a press list, which sets out the public hearings due to take place each week.
Both of these documents contain the names of the parties involved in each case. This is the first time that the parties are publicly named. The lists also contain codes for the types of claim involved in each case (for example, “SXD” for a sex discrimination claim), so anyone who is familiar with these codes can see broadly what the case is about. Each ET hearing centre is also likely to have a printed version of the day’s cause list on a wall or noticeboard in a public area of the building.
In practice, this means that if a case is being settled wholly or in part to avoid any publicity, it is important to do so at least a week before any public hearing takes place – or ideally sooner, as it may take some time for the ET to process the fact the case is no longer going ahead, and it is not unknown for the ET to make mistakes. Otherwise there is the risk that the names of the parties and claim details will be revealed in the weekly press list or daily cause list, even though the hearing itself does not take place.
In many cases, particularly those involving claims of discrimination or whistleblowing, there will have been at least one preliminary hearing before the final hearing which decides the case. These may simply cover matters of judicial “housekeeping”, such as clarifying the precise nature of the claims, deciding the length of the final hearing, and making directions for preparing documents and witness statements. But they may also address matters of substance, such as whether a claimant’s medical condition amounted to a disability, the claimant meets the definition of an employee, or a claim has been made within time.
Preliminary hearings inevitably fall much earlier in the life cycle of an ET claim than the final hearing, meaning it is more likely that the hearing will go ahead. Preliminary hearings which merely involve “housekeeping” are held in private. This means they are not listed on the CourtServe website and the public will not know they are happening. However, where there is a substantive preliminary issue to be decided, the hearing should be held in public. This is because of the underlying open justice principle that a hearing that is likely to affect whether the claimant will succeed in some or all of their claims should be subject to public scrutiny.
The ET Rules establish a clear default position that all final hearings should be in public. This means that in most cases, members of the public, including journalists and other interested parties, are free to attend the ET hearing and hear the witness evidence and legal arguments. Even in the age of fully remote hearings, this principle remains unaffected. Members of the public can contact the relevant ET and ask to be provided with joining details for hearings which are taking place entirely online. New rules on remote observation of hearings and practice guidance have recently been published, which potentially allow someone to apply to attend a hearing remotely even if the hearing itself is being held wholly or partly in person.
Whilst this is often a theoretical rather than a real possibility – ET hearings are rarely overrun with observers – it is an important factor to bear in mind. There are some limited circumstances in which a hearing can be held fully or partly in private, discussed further below. In general, though, an ET has no discretion in this area. For example, a hearing that took place in a judge’s office behind a locked door because there were not sufficient courtrooms available should, according to the Court of Appeal in Storer v. British Gas Plc, have taken place in public. The fact that no members of the public were actually trying to view the hearing was not relevant; the fundamental principle is that the proper administration of justice means that it must be possible for the public to attend if they wish to do so.
Witness statements and documents
Under Rule 44 of the ET rules, witness statements must be available for “inspection” (meaning public viewing) during the hearing. If the hearing is conducted remotely, this can be challenging. The new rules on remote hearings do allow for statements to be provided after the hearing, or as a download. However, the parties may prefer to give access by screen-sharing during the hearing to avoid statements being taken away and kept.
There is no specific rule for the supporting documents contained in the hearing bundle. If a witness refers to a document in the bundle, this means that the document must then also be made available. In practice, the public are generally permitted to see the whole bundle on basis of open justice. The potential for sensitivities, both personal and commercial, is obvious. Precisely what must be included in the bundle is a legal battleground that we consider below.
After the hearing
Requesting documents after the hearing
The extent to which the open justice principle enables access to documents by non-parties – both during and after the hearing – was clarified by the Supreme Court in Cape Intermediate Holdings v Dring. The question in this case was how broad the court’s powers were to order disclosure of documents to non-parties. The conclusion was that open justice allows a court (or ET) to release everything, provided the applicant explains how granting access will advance the open justice principle.
This principle was applied recently by the Employment Appeal Tribunal (EAT) in the case of Guardian News & Media Ltd v. Rozanov & Anor. In this case, a journalist who had attended the hearing wrote to the ET four months later, requesting copies of various documents referred to in the ET’s judgment. The application listed various journalistic reasons for the request. The ET concluded that the open justice principle was not strongly engaged and that it would be disproportionate to require the employer to provide copies of the documents which were not held by the ET.
This decision was successfully appealed. The EAT disagreed that the open justice principle was not strongly engaged - the public interest in the subject matter of the proceedings should have weighed in favour of granting the application. As a result, statements, submissions and certain documents from the hearing bundle to were made available to the journalist.
The register of judgments
Whilst high profile cases may attract media attention and observers during the hearing, in most cases information about the parties and facts of the case is likely to come to wider attention via the fully searchable online register of ET judgments.
Under Rule 67 of the ET rules, a copy of the judgment and written reasons must be entered on to the Register of ET judgments. Previously, viewing the Register required a trip to Bury St Edmunds (in itself an effective means of restricting the circulation of information about the case), but in 2017 this moved online. An ET decision is potentially caught by a simple internet search of the parties’ names. Notably, the database itself is also searchable, for example for the names of others mentioned in a judgment.
In terms of the information provided in the judgment, this of course sets out the legal findings reached by the ET. But judgments often also include written reasons for the decision, which are likely to include a significant amount of factual detail. Given how readily accessible a judgment now is, it is crucial that both Claimants and Respondents factor the prospect of this becoming public into their assessment of the risk presented by the proceedings. For example, serious allegations against a named manager may be detailed in the judgment, and even if the Tribunal does not uphold them, they may remain easily “searchable” for the rest of the manager’s career.
Historically, there were concerns that even a settlement could result in a publicly accessible judgment. If the parties reach a settlement, the ET will usually issue a judgment dismissing the claim on withdrawal. These were initially published on the online database, meaning the fact of a claim and the names of the parties would be publicly available even though no hearing had taken place. However, that risk was removed in 2020, when the rules changed and these types of judgments no longer needed to be published. This means that parties who settle a case before a public hearing can now stay firmly under the radar (so long as the case details have not yet been published on the CourtServe website).
Exceptions to open justice
Rule 50 of the ET rules of procedure allows for a hearing, or some parts of it, or some of the material that would otherwise be disclosed in it, to be kept private.
This gives the ET significant flexibility. It can issue an order at any stage in order to prevent or restrict public disclosure of any aspect of the proceedings. The test is whether this is in the interests of justice, is necessary to protect the Convention rights (human rights) of any person, or is necessary in certain specific circumstances.
It is important to note that this is the exception rather than the rule. When considering such an application the ET must give “full weight to the principle of open justice and to the Convention right to freedom of expression”. This involves a difficult balancing exercise of competing values and interests, something the courts have been grappling with in a number of recent cases.
Holding the hearing in private
The most draconian option is to order that the hearing is conducted, in whole or in part, in private. This is rarely ordered because it constitutes the greatest derogation from the open justice principle, and other options are available which preserve a greater degree of public scrutiny. Case law shows that the bar is set high when considering when this kind of order may be appropriate. Circumstances must go significantly beyond “commercial embarrassment” – it must be shown that publicity would have such catastrophic consequences that justice could not be done without the restriction.
Preventing the disclosure of identities
The Tribunal has the power to prevent the disclosure of the identities of a range of parties associated with the proceedings - witnesses, specified parties or other people referred to in the pleadings, and people or organisations referred to in documents or evidence. This kind of order can be used to prevent names being referred to at all, during the hearing and afterwards. It is commonly used to protect vulnerable individuals such as children or victims of abuse.
As with the exercise of all of these powers, this must be balanced against the need for open justice, and recent decisions have confirmed that strong reasons are needed to grant an anonymity order. For example, in A v. Burke and Hare the EAT has held that concerns about reputational damage held by a claimant who worked as a stripper were not sufficient, as there was no associated risk of verbal abuse or assault. That said, the 2021 EAT decision in the case of TYU v. ILA Spa Ltd suggests that it is likely to be easier for individuals who are not a party to or a witness in the proceedings (and so had no expectation that they might be named in a public judgment) to secure such an order. This principle was recently echoed in the case of Piepenbrock v. London School of Economics in which the EAT made an order to protect the identity of the claimant’s former colleague who was not a party or a witness in the proceedings. Lurid allegations against this individual had been found by the ET to be untrue. The EAT determined that the need for open justice was, on these facts, trumped by the individual’s right to a private life and also the risk that, without this order, the Claimant would abuse the court process to draw further attention to the third party.
It is important to be aware that, strictly speaking, the parties cannot simply agree between themselves to anonymise names. This is a matter for the ET, and the open justice principle must still be considered even if both parties are happy for certain names to be kept confidential. Even if the parties are agreed, the prudent step is therefore to seek the ET’s permission before anonymising documents that will be placed before it. It is also worth noting that ETs are generally not sympathetic to parties or others who want to be anonymised simply because of the public register of judgments. The online register in itself is not a special factor allowing anonymisation, and the usual tests still need to be applied.
Witness non-identification order
An individual may of course be identifiable simply by their presence as a witness in a public hearing. The ET does have powers to prevent a witness’ identity from being identifiable (for example by the use of a screen, or giving evidence by phone), but these powers are rarely exercised.
Restricted reporting order
The ET has the power to make a restricted reporting order (RRO) in cases involving allegations of sexual misconduct (covering the commission of a sexual offence, sexual harassment or other adverse conduct related to sex), and in disability discrimination cases where “evidence of a personal nature” is likely to be heard,. This makes it a criminal offence to publish anything in Great Britain that is likely to lead the public to identify certain individuals.
RROs can be issued only to protect an individual, not a corporate body. That said, an RRO could extend to a prohibition on publishing the names of the employer and/or any other persons closely associated with the case if their disclosure would be likely to lead to the identification of those listed in the order.
Clearly this is a significant restriction on the fundamental right of freedom of the press, meaning that this type of order is particularly strictly regulated. The ET rules require that a RRO is tightly defined, both by duration and by reference to the party whose identity is being protected. The RRO must state how long it remains in force for. Details about the case can be reported after the expiry of the order, which is commonly when the proceedings have finished, meaning that an RRO generally doesn’t give anonymity indefinitely.
It is also worth bearing in mind that attention may be drawn to the case simply by the fact it is subject to an RRO. The ET must post a sign outside the hearing room which notifies the public about the terms of the RRO. There is a risk that this means the press think it must be an interesting case, and so are more likely to attend the hearing in order to report on it later.
Withholding and redacting documents
We have already considered how the fundamental importance of the open justice principle gives the court extensive powers to order disclosure to non-parties both during and after a hearing. Public access to the contents of the hearing bundle is understandably a central concern for the parties in ET proceedings.
Given the widespread use of electronic bundles, and the ease with which parts of documents can now be redacted, redacting and anonymising documents has become quite widespread practice over recent years. But even if an agreed position on redactions and anonymisations is reached between the parties, it cannot be assumed that the ET will be happy with this approach.
What documents must be included in the bundle?
It is helpful to consider first what documents should be included in the bundle. There are two aspects to this – the parties’ obligations to disclose documents to each other, and what then goes into the bundle for the hearing.
Under its rules, the ET has broad powers relating to disclosure, requiring it to give effect to the “overriding objective” and ensure that the case is dealt with fairly and justly. Whilst the scope of disclosure is determined by the order issued by the ET in a given case, a standard direction is that the parties must provide copies of all relevant documents in their possession to the other side, regardless of whether the contents of the document support or damage their case or the other party’s case. Where these documents are genuinely relevant to the issues in the case, they should be included in the hearing bundle.
“Relevant” can be a slippery concept, particularly in a case where the facts are sprawling or the issues not clearly defined. Although the possibility of public scrutiny of court documents might incentivise parties to take a more limited view of the scope of the disclosure duty, this needs to be balanced against the risks of failing to give proper disclosure. This could result in harmful judicial criticism, financial penalties or even adverse inferences. Solicitors also have a duty to the court to ensure that proper and full disclosure is given.
An alternative approach is to view the disclosure exercise as a wide one, which captures everything which may potentially be relevant to the case – but then narrow down the documents that are included in the bundle for the hearing to those that are directly relevant. It can sometimes be tactically helpful to disclose material that is of borderline relevance, in order to show that a party has nothing to hide. The difficulty with this approach is that the other party may not agree to limit the documents in the bundle in this way. This is why ET bundles often end up running to thousands of pages, even though only a small proportion of those pages are actually referred to in the hearing.
And what if only part of a document is relevant? Although the approach taken to this question can vary between ETs, recent case law from the EAT has provided some clarity. Whilst viewing the relevant material in the context of the entire document can be helpful, there is no legal obligation to disclose content which is not relevant. This means it is potentially permissible to redact part of a document and only disclose those parts that are relevant to the case. This will, however, inevitably mean additional work and associated cost at the disclosure stage.
It can be helpful to focus on what the “live issues” are in the case and seek to define this as precisely as possible in the preliminary stages of proceedings. If there is a dispute over relevance or redactions, the parties can ask for a preliminary hearing at an early stage in order to get the ET’s assistance with sorting out disclosure and/or the bundle. Leaving aside the publicity issues, no ET judge will thank you for producing a huge hearing bundle full of irrelevant documents!
Redacting the hearing bundle
As already discussed, the ET has broad powers to protect the privacy of the parties by allowing names or information to be redacted. However, the days of rubber-stamping agreed redactions to the bundle are behind us.
This can cause parties particular difficulties where relevant documents in the bundle contain confidential information, such as the names of clients. These names or other confidential details may not in themselves be strictly relevant to the issues in the case. Nevertheless, in the recent case of Frewer v. Google UK Ltd & Ors the EAT emphasised that press reporting would be of less interest to readers with such information and identities redacted. The ET must consider this before making any order to anonymise documents. This renewed focus on the open justice principle and the right to freedom of expression means that such an order cannot be taken for granted, and a hearing bundle full of blanked-out sections is increasingly likely to be questioned by the Judge.
This is an important consideration for the parties when assessing the commercial risks arising from prospective and ongoing litigation. It can’t be assumed that sensitive names and other information in pleadings, witness statements or the hearing bundle can be easily redacted. Without an order under rule 50, these have the potential to end up in the public domain.
Conclusions - being proactive and realistic
When ET proceedings start, the prospect of a public hearing may seem reassuringly distant. However, the rebalancing of the competing interests of privacy and open justice that we have seen recently means that parties need to take a realistic look at what material may come into the public domain and be proactive in addressing this at an early stage.
In summary, key things to think about are:
- Consider how early identification of the issues may enable disclosure to be more focussed.
- Where you can, work with the other party to the case in order to limit the documents in the hearing bundle to those that the parties are agreed are strictly relevant to what the ET has to decide.
- If there is a dispute about disclosure or what should be included in the bundle, consider asking for a preliminary hearing so that the ET can help to resolve the issue at an early stage, or an alternative step such as an agreed core bundle and a “Claimant’s bundle” with other documents the Claimant wants to put before the ET (but in practice will often then fail to refer to).
- Ensure that witnesses and others named in the proceedings are aware of the public nature of ET hearings.
- Don’t assume you can simply agree with the other party that certain identities or other information can be anonymised - if this is an important issue, make an early application to the ET for an order under Rule 50.
- If setting a case to avoid publicity, ensure this is done well in advance of any public hearing in order to avoid publication of details on the CourtServe website.