Most, though not all, hearings which take place at the employment tribunal are open to the public. Accordingly, a member of the press is entitled to sit in and observe such proceedings in the same way as any other member of the public. A party’s first contact with the press may not be the more austere environment of a hearing, but outside the hearing venue or in the corridor. No one is obliged to speak to a member of the press and any attempt to harass a party or witness into making a comment may amount to a contempt. In the majority of cases, a polite but firm “I am afraid I do not wish to make any comment” should suffice.
What, however, if a party or witness does wish to speak to the press? He or she is at liberty to do so, but should be mindful that:
- It would be inappropriate to speak to the press while on oath (and doing so could amount to a contempt as the witness on oath is in complete purdah and cannot speak to anyone about his or her evidence).
- There is no guarantee that what is said will be reported faithfully.
- That which appears in the press (rightly or wrongly) may affect negotiations, potential mediation or other conciliation processes.
- In some cases, engaging with the press could have consequences for the value of a claim in compensation or damages, or possibly costs.
In short, anyone wishing to speak to the press should consider very carefully whether it is advisable to do so. Further, a pre-prepared statement may well be the safer course of action than a few sentences uttered “on the hoof”. Advisers should never speak to the press without client instructions (preferably in writing) and counsel would be wise to have regard to the Bar Standards Board: Media Comment Guidance.
In limited circumstances, the tribunal may make a restricted reporting order (RRO) restricting the publics access to a hearing, including the press, under rule 50. An RRO may be made in order to:
- Prevent or restrict the public disclosure of any aspect of the proceedings so far as is considered necessary in the interests of justice.
- Protect the rights of any person under the European Convention on Human Rights (ECHR); and/or
- Protect confidential information as set out in section 10A Employment Tribunals Act 1996.
The tribunal should allow representations from any party or “other person with a legitimate interest” which includes members of the press (rule 50(4)). If an RRO is made, it must comply with rule 50(5), which includes that the notice of the RRO must be displayed on the noticeboard where hearings are listed and on the door to the room in which the hearing is taking place.
What then of the practicalities of members of the press attending a hearing? Plainly they are entitled to observe and to take notes. Further, it is usual practice for tribunals to ask the parties to provide members of the press with access to a copy of the witness statements (whether or not the witness read out their statement) and, to documents, where these are referred to. It is also usual to allow members of the press to have access to the ET1 and ET3 and to skeleton arguments. Whether the documents forming the basis for the decision should be supplied under the principle of open justice was considered by Lewison J in ABC Ltd v Y [2010] EWHC 3176 (Ch). While setting no hard and fast rules, it is a useful touchstone for those seeking access to a wider class of documents than those conventionally sought or those seeking to defend such an application.
Not all tribunals ask that the parties allow members of the press to take copy statements or pleadings outside the hearing room. However, it is a matter of discretion, as rule 35 states that the tribunal may “permit any person to participate in proceedings, on such terms as may be specified, in respect of any matter in which that person has a legitimate interest”.
Common practice should not be taken as being insusceptible to challenge and any party faced with a request by the media, or a suggestion by the tribunal that documents ought to be provided to the media, should certainly not be too shy in making representations as to the desirability of doing so and the terms on which to provide copies.
There is currently no Presidential Guidance on this topic (it is not covered in the Presidential guidance on general case management). One might argue that the time is ripe for such guidance to be provided.
