Swiss bank ordered by Employment Appeal Tribunal to provide documents to newspaper group

About this case:

• Citation:
  [2022] EAT 12
• Judgment:
  External link
• Court:
  UK Employment Appeal Tribunal
• Judge:
  His Honour Judge James Tayler

Guardian News & Media Ltd had sought the documents, as referred to in the original ET judgment, from EFG Private Bank Ltd, shortly after a copy of the judgment had been sent to the parties. The original ET judgment refusing an application brought by employee Dmitri Rozanov was made in October 2018.

The appeal was heard by Judge James Taylor sitting on the Employment Appeal Tribunal. Greg Callus appeared for the appellant and James Goudie QC for the respondent EFG. No representations were made on behalf of Mr Rozanov.

Open justice

Mr Rozanov, the original claimant, had been employed by EFG as a UK market coordinator for Russia, Eastern Europe, and the CIS countries. He brought proceedings in the ET claiming he had been subject to detriment by his employer, and subsequently unfairly dismissed, on the grounds that he had made protected disclosures. While the ET accepted that most of the disclosures that he had made were protected, it did not accept that they were the reason for his dismissal.

The hearing was attended by journalists, although none from the appellant appeared, with copies of witness statements provided for inspection during the hearing. On 23 November 2018, an employee of the appellant wrote to the ET requesting documents from the hearing for reasons of public interest, including evidence that EFG had deliberately colluded with high-risk clients and politically-exposed persons, as well as journalistic reasons.

EFG objected to the application by letter dated 10 December 2018 and asserted that the tribunal did not have the power to make such an order. In a decision of 9 January 2020, the ET held that the requested documents would not be provided to the appellant, reasoning that in the circumstances it would be against the principle of open justice to do so.

Counsel for the appellant submitted that the tribunal had failed to properly define the scope of the open justice principle, and that its evaluation of the balance between open justice and the countervailing factors in this case was clearly wrong. The respondent relied on the ET’s reasoning and further submitted that the documents sought lawfully engaged the Article 8 ECHR rights of the individuals identified in them.

Fundamentally flawed

In his decision, Judge Taylor observed: “There is an important distinction between the public interest in the open justice principle and any specific public interest in the subject matter of the case being determined; they are different things. It is in the public interest that proceedings be conducted in public whether or not the subject matter of the proceedings raises any matter of public interest. The public need to be able to see that justice is being properly administered even in the most mundane of cases.”

He continued: “Just as in the case of members of the public there are ‘purely practical reasons’ why the press cannot attend every hearing, or attend every day of a lengthy hearing. The press have an important role in reporting the judgments of courts and tribunals. It is in the public interest that they have the necessary information to be able to do so fairly and accurately.”

Addressing the ET’s treatment of the open justice principle, he said: “I consider that the employment tribunal’s conclusion that the open justice principle was not strongly engaged was fundamentally flawed because the employment tribunal focused only on the reasons GNM gave for contending that the subject matter of proceedings raised matters of public importance and did not consider the other reasons that GNM relied upon, which it described as journalistic reasons, to explain why they wished to obtain the documentation.”

He went on to say: “Far from this being a case in which the principal of open justice was not strongly engaged, the converse was the case. 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.”

Judge Taylor concluded: “If necessary I would say [the decision was] 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. This is an unusual case in which any Article 8 or confidentiality issues had been dealt with by redaction and by the Rule 50 Order. GNM, have chosen not to appeal the Rule 50 order or to seek unredacted documents and have wisely limited their application for redacted documents to those referred to in the judgment.”

The appeal was therefore allowed, and the respondent was ordered to provide the requested documents.