Dimitri Rozanov v EFG Private Bank Limited

The tribunal had rejected claims for unfair dismissal, automatic unfair dismissal and whistleblowing detriment in an employment case by a reserved judgment. During proceedings a Rule 50 Order was made by consent to redact the names of the Respondent bank clients as well as three individuals, whose names, if disclosed, would lead to the identification of the clients.

After the judgment was put on the public register, the Guardian applied for copies of various documents referred to in the judgment, witness statements and skeleton arguments relied on in open court, the trial bundle, and documents on the court file (the ET1 and ET3).

The Tribunal informed the parties that it did not hold clean copies of the requested documents apart from the ET1 and ET3.

The Respondent contested the entirety of the Guardian’s application. The Claimant made no objection to disclosure.

1. Does the Tribunal have the power to make the requested orders?
2. Should the documents sought be disclosed to the Guardian?

(1) The Tribunal does have the power to make the requested orders under its inherent jurisdiction. This follows the decision of the Supreme Court in Cape Intermediate Holdings v Dring [2019] UKSC 38.

The Respondent originally contested whether the tribunal had the power to make the requested orders after the proceedings had concluded and whether it had power to order a party to supply the requested documents to the Guardian as a third party at all. Following the decision of the Supreme Court in Dring the Respondent conceded that the Tribunal does have such power under its inherent jurisdiction.

(2) Application allowed in part.

The Tribunal did hold the ET1 and ET3 on the court file and these should be provided unredacted to the Guardian. The principle of open justice was engaged and it was not onerous for the Tribunal to provide copies from the court file. There was no good reason to redact any part of the documents.

The Guardian requested disclosure of unredacted trial bundles and the names of the three anonymised individuals. In the view of the Tribunal the identities of these individuals were irrelevant to the underlying judgment. The individuals were entitled to privacy about where they bank unless there are strong countervailing reasons. Accordingly, the Rule 50 order should not be lifted.

The other documents, apart from the ET1 and ET3 that were on the court file, were no longer in the possession of the Tribunal. An order for disclosure would have to be made against the respondent, as the claimant says he has not retained hard copies. The respondent would have to retrieve the papers and supply them to the Guardian. The case was heard in open court and third parties, including the media, were free to attend, listen and take copies at the time. The principle of open justice was not powerfully engaged, as the Tribunal found that the Guardian’s purpose did not aim to examine the claimant’s treatment (which was the subject of his claim) or the Tribunal’s investigation of that issue. In any event an order for the documents not on the court file would be disproportionate when weighed against the principle.

The first application of the principles in Cape v Dring in the Employment Tribunal.