Guardian wins legal challenge over access to employment tribunal papers

Journalists should be provided with access to documents from employment tribunal cases even in the aftermath of a judgment, it has been ruled, after a successful legal challenge by the Guardian.

Guardian wins legal challenge over access to employment tribunal papers
Katharine Viner: “The ruling is a welcome signal that open justice and public interest journalism can and must go hand in hand.”

As reported by the Guardian: In a significant victory for open justice, the employment appeal tribunal threw out a ruling from a lower court that the costs of transparency would be too burdensome, and instead ordered that the Guardian should be provided with documents it had requested.

The judge suggested the documents should be released at no cost.

The ruling builds on a series of recent judgments enhancing the rights of journalists to access documents placed before the court, particularly where they demonstrate that they are acting in the public interest.

“The press have an important role in reporting the judgments of courts and tribunals,” the judge, James Tayler, ruled. “It is in the public interest that they have the necessary information to be able to do so fairly and accurately.”

The case relates to an application by the Guardian journalist David Pegg, in 2018, for documents referred to in the public judgment of an employment tribunal case.

The case involved Dmitri Rozanov, an employee of the London branch of EFG, a Swiss bank, which he claimed had unfairly sacked him. Rozanov argued he was sacked after raising concerns about EFG’s compliance with anti-money-laundering practices and its facilitation of a $100m transaction for a client allegedly connected to the Chechen despot Ramzan Kadyrov.

The tribunal concluded that the matters Rozanov had raised did constitute protected disclosures in law. However, it found that EFG had sacked him for reasons other than his protected disclosures.

The Guardian subsequently wrote to the tribunal requesting copies of documents mentioned in the Rozanov judgment, including emails in which it appeared that serious deficiencies in EFG’s anti-money-laundering practices had been alleged.

However, Judge Lewis of the employment tribunal refused the Guardian’s application, claiming that the reasons cited by the newspaper were insufficient to engage the open justice principle, and that the costs of locating and scanning the documents requested would be too burdensome.

The Guardian appealed against Lewis’s ruling, and in a decision released on Tuesday, Tayler reversed the lower tribunal’s decision and ordered EFG to hand over the documents.

Tayler criticised Lewis’s suggestion that giving journalists access to tribunal documents would be too expensive, describing a complaint that this would require locating and scanning paper copies of documents as “a picture of a solicitors’ office of the 70s”.

“The decision of the employment tribunal to give more weight to the possible minor inconvenience in providing the documents than to the principle of open justice means that the determination reached by the employment tribunal was wrong,” he wrote.

“If necessary I would say plainly wrong, and go so far as to find it was perverse in the sense of it being a decision that no reasonable tribunal could have reached in the circumstances of this case on a proper direction of law.”

Tayler said digital trial bundles had become increasingly ubiquitous in the legal system, particularly since the coronavirus pandemic, and that as a result there was likely to be no effective administrative cost in providing electronic copies of documents to journalists.

He also ruled there was no time limit on an application for documents, and that journalists were entitled to inspect materials relevant to a tribunal judgment even after a case had concluded.

The judge said the Guardian’s application to the lower tribunal had established “journalistic” reasons for accessing the documents, such as ensuring that any subsequent article was as accurate as possible, and also underlying subject matter of public interest, specifically EFG bank’s anti-money-laundering procedures.

“Far from this being a case in which the principle of open justice was not strongly engaged, the converse was the case,” Tayler wrote.

“GNM set out proper journalistic reasons for seeking provision of the documentation. The public interest in the underlying subject matter of the proceedings was something that should also have weighed in favour of granting the application.”

The Guardian was represented by the barristers Greg Callus and Ben Hamer of 5RB. Katharine Viner, the editor-in-chief of the Guardian, said: “This is a significant judgment in favour of open justice and emphasises the importance of allowing journalists to see documents referred to in employment tribunals.”

She added: “The ruling is a welcome signal that open justice and public interest journalism can and must go hand in hand.”

The EFG bank has submitted an appeal to challenge part of the judge’s ruling as it argues that a set of documents should not be released, while it accepts that the Guardian should be given copies of two other sets of documents.

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