Open justice and access to tribunal documents clarified by the EAT
The Employment Appeal Tribunal has ruled on whether a member of the public could obtain documents after remotely observing a hearing. The case highlights the balance between transparency and protecting privacy in employment cases.
Background
The principle of open justice underpins all court and tribunal proceedings, ensuring that decisions are made transparently and can be scrutinised by the public. In the Employment Tribunal, this means that hearings are generally open to observers, unless specific orders are made to restrict what can be reported (for example, restricted reporting orders or anonymity orders to protect individuals).
In the case of Cohen v Mahmood, the underlying proceedings concerned a whistleblowing case involving MP Khalid Mahmood and a former employee of his, Ms Cohen. Ms Cohen succeeded in part of her claim before the Employment Tribunal, which found she had been unfairly dismissed and subjected to one detriment for making protected disclosures. Other aspects of her claim, including allegations of automatic unfair dismissal and further detriments, were dismissed.
The application for documents
Ms Cohen sought to appeal. In connection with that hearing, a member of the public, Ms Cetin, applied to observe remotely and also asked to be given copies of a wide range of documents, including the claim and response forms, the notice of appeal and the parties’ skeleton arguments.
The EAT allowed her to watch the hearing remotely but refused her request for documents. The judge explained that while open justice is a vital principle, it does not create an automatic right to receive tribunal papers. Members of the public can usually view documents in a hearing, but they are not entitled to take them away. In this case, the applicant was not prevented from viewing materials; she could have attended in person to see them, but the court decided it was not necessary or proportionate to provide copies.
The EAT's reasoning
The EAT emphasised that the principle of open justice exists to allow public scrutiny of how cases are decided, but it does not guarantee free access to all documents. Anyone seeking documents must be able to explain why they are needed and how disclosure would genuinely advance transparency. Judges can refuse requests where there are risks to privacy, disproportionate administrative burdens, or concerns about how documents might be used. The court is entitled to ask for information about applicants, including their purpose and track record, to decide whether disclosure is in the interests of justice. The judge also noted that repeated applications of this kind have been consuming significant time and resources, which the court is entitled to take into account.
Learning points for employers
Employment Tribunal and Appeal Tribunal hearings are public, and observers may attend, often including remotely. Judgments are also published online. However, supporting documents such as pleadings and evidence bundles are not routinely made available to non-parties. Observers may see them during the hearing, but they will not usually be provided with copies unless there is a strong and specific justification linked to the principle of open justice.
For employers, this means that while the detail of proceedings may be heard in public and recorded in the judgment, sensitive materials disclosed for the purposes of the litigation will not normally circulate more widely. Where particular risks arise, for example in cases involving allegations of sexual misconduct, whistleblowing, or vulnerable individuals, the tribunal has the power to make restricted reporting or anonymity orders to protect parties or witnesses. These mechanisms sit alongside the open justice principle to ensure the right balance is struck between transparency and privacy.