One hundred years ago this month, in November 1923, Lord Hewart delivered a famous legal judgment on the principles of open justice, declaring it of fundamental importance that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. It is in that spirit of open justice that Employment Tribunals (ET) today remain open to the public and the content can freely be reported on in the press and media. As a result, when ET claims are issued, it is not uncommon for the parties to be anxious about who will have access to documentation that is presented to the ET in proceedings, and what they can do with it.
In light of a recent announcement that ET hearings will now be routinely recorded from November 2023, we take this opportunity to explore what “open justice” means in the context of online hearings, and who can see or hear what and when.
Are there any exceptions to the principles of open justice in the ET?
Yes, but it’s important to recognise that these only apply in truly exceptional circumstances. The default position applicable to the vast majority of ET cases is that the principle of open justice will apply to ensure transparency and public confidence in the judicial system. However, there is provision in the ET rules for parties to make applications for hearing (or part of them) to be heard in private, for anonymity of certain individuals (e.g. a party, witness, or third parties referred to in documentation) and/or restricted reporting orders to limit what can be revealed publicly. These applications may be granted in exceptional circumstances where it is in the interests of justice to do so, confidential information is involved, and/or where circumstances mean that, on balance, an individuals’ rights to privacy under the European Convention on Human Rights (ECHR) outweigh principles of open justice.
It should be noted that case management preliminary hearings tend to be held privately given that their focus is on administrative matters only. In practise this means they are only open to the parties and their legal representatives. However, where a substantive issue is being dealt at a preliminary hearing (e.g. an application to strike out the whole or part of a claim), the principles of open justice apply.
What information and documentation are available during ET litigation?
Subject to any anonymity or reporting restrictions in place, what is available publicly depends on the stage of proceedings.
What is available before an ET hearing?
Very little is available for members of the public to access before there has been a public hearing, with no right of access to the ET’s file or the legal pleadings (e.g. the claim form and response). In theory, a party may choose to share pleadings or other documents with others (particularly if they are involved in the litigation) or otherwise put them into the public domain, but that would be an unusual step. Further, documents provided by one party to another are subject to a rule that they are only to be used for the purpose of the proceedings, and not for some other collateral purpose.
A few days before the hearing, the parties are revealed, and the nature of the case is disclosed through the ET’s system. The case is, therefore, a matter of public record allowing the ET to verbally provide the media with the names of parties, case number, names of solicitor representatives, name of judge, any reporting restrictions, and (once applicable) the outcome. It is unclear whether this right to basic information extends also to non-media public but given the general principles of open justice, it is difficult to see why there would be any distinction.
What is accessible at the hearing?
It is not until the actual day of the hearing that any detail of the litigation becomes available, with the public and media entitled to have access to most ET documents, if the hearing (including those held remotely or in hybrid format) is open to the public. This is because subject to any privacy orders or other restrictions in place, witness statements, the hearing bundle and other documents referred to in evidence or at the hearing will generally be available for inspection my members of the public (and press) who attend public ET hearings, so that they are able to see and hear the same as what the ET sees and hears. There is specific ET guidance on how this is managed practically for remote and hybrid hearings.
Who can get this information and what can they do with it?
Access to documents during the hearing is limited to only those people actually attending (in person or remotely) the hearing, and the right is for inspection, not to keep or take copies (including photos) of anything unless they have the express permission of the ET. There is also an express prohibition on any party, representative, witness or member of the press or public from recording or broadcasting a hearing without the permission of the ET (which will only be granted in exceptional circumstances). However, the media may take what they have seen and heard to report on the claim, subject to any restricted reporting orders in place.
Are documents accessible after the hearing?
In recent years, cases have concluded that open justice enables documents to be provided (upon request) following a hearing where it would be in the public interest to do so, and such access promotes open justice. Although the ET must consult with the parties (and any relevant non-parties) when deciding whether to grant the application, providing them an opportunity to object, the ETs decision will be based on a fact specific balancing exercise. It is crucial that parties bear this in mind when preparing court documents such as bundles and include only those documents which are crucial to the case.
Are hearings recorded by the ET?
With effect from 20 November 2023, there is provision for all ET hearings (i.e. whether public or private) to be recorded. The only exceptions are judicial mediations / dispute resolution appointments, and hearings where there is a national security order in place. All remote hearings will be recorded, and in-person hearings will be recorded to the extent the facilities exist (which is very limited at the moment), and recordings will be limited to audio only i.e. there will be no visual recordings taken.
Is a copy of the audio recording available after the hearing?
The primary purpose behind the new audio recordings is for internal judicial purposes, namely: for preparation of the judgment of the case; if needed as part of an investigation or complaint into judicial misconduct; and for assessing judicial performance. As such, parties, representatives, witnesses, the press or public will not generally be given access to the audio recording or given permission to listen to it.
In very limited circumstances (e.g., in the interests of justice to ensure active participation of a vulnerable witness, or a reasonable adjustment for a disabled person – and only with supporting evidence), a party or their representative may be given permission to listen to all or part of the recording. Access will be under supervision and notes can be taken, but no copy of the recording can be made (and the ET reserves the right to set further conditions). This does not extend to non-parties, and so witnesses or other third parties, including the media, will not get access to the recording.
However, transcripts of the audio recording may be available – a party (or their representative) can order a transcript of the audio recording of a public or private hearing, and non-parties can apply for transcripts of public hearings only, in both cases by completing the relevant form, paying the appropriate fee, and applying within a period of six months of the final date of the hearing. The ET may request supporting evidence and seek comments from the other party before granting or denying access, and as a new concept, it remains to be seen how strict ETs are in granting access to transcripts; certainly, the guidance suggests that it should not be freely given and that parties should seek written reasons for an oral judgment, and non-parties review the register of judgments (see below) for decisions rather than requesting the transcript.
Can the parties make record the proceedings themselves (e.g. on their mobile phone)?
No, this is strictly forbidden. Recording judicial proceedings is a contempt of court and can result in sanctions including an unlimited fine and imprisonment. With the consent of the ET, a party can ask for permission for a transcription service to attend an ET hearing. It is at the discretion of the Judge as to whether this is permitted.
Are judgments a public record?
Yes, judgments are publicly available and can be accessed via an online directory.
Is this due to change?
Maybe. During 2023 the government consulted on the principles of open justice across the whole court and tribunal network, including seeking views on the public’s access to documentation. The consultation closed on 7 September 2023 and feedback is being reviewed. There is no timescale for a response.