Disclosure order made against a party outside Great Britain

Can an Employment Tribunal order disclosure by a party outside Great Britain?

The Issue

In the recent case of Sarnoff v YZ [2021] EWCA Civ 26, the Court of Appeal (CA) considered whether the Employment Tribunal (ET) can make an order requiring disclosure by a party to proceedings who lives outside Great Britain.

The Facts

YZ, the respondent in this case claimed she had been subject to sexual harassment by Mr Harvey Weinstein during her employment. She brought a sexual harassment claim in the ET against the companies she was employed by, Mr Weinstein himself and several other individuals, including the appellant in this case Mr Sarnoff. She alleged that these individuals knowingly helped Mr Weinstein commit harassment by failing to prevent his conduct.

Mr Sarnoff is a US citizen who lives and works in California and he had not at any material time been in Great Britain. The ET Judge made a general order against all parties for disclosure of relevant documents. In the first instance Mr Sarnoff appealed to the EAT arguing that Rule 31 of the ET Rules of Procedure (ET rules) which had been applied by the ET relating to disclosure did not apply to him, as this rule only applies to persons in Great Britain.

The EAT dismissed the appeal on the grounds that they took the words ‘in Great Britain’ to be a reference to the location of the tribunal and not of the person that the order is made against. Mr Sarnoff appealed to the Court of Appeal (CA).

The CA considered Rules 29, 31 and 32 of the ET Rules and applied different reasoning.  On the face of Rule 31 it looks as though it is intended to apply to all Orders for disclosure against both parties and non-parties; however, they considered its actual intention was much narrower, intending to be a specific provision relating to disclosure by non-parties only.

The CA considered Rules 31 and 32 in conjunction with the Civil Procedure Rules concluding that it would be excessive if the tribunal were to have wider powers than the civil courts by requiring disclosure of a non-party outside Great Britain.

As a final point it considered the overriding objective, ensuring that parties are on an equal footing. In this instance if one party in Great Britain was ordered to give disclosure and the other was not because they were overseas, they could not be said to be on equal footing.

The CA drew a distinction between orders for disclosure against parties and non-parties and concluded that disclosure against parties was a matter of routine case management. This therefore fell within the tribunals general powers of case management under Rule 29, to which there was no geographical limitation. Rule 31 is a specific provision relating to disclosure against non-parties and therefore the words ‘in Great Britain’ of Rule 31 did not apply to Mr Sarnoff as he was a party to these proceedings.

Points to take away from the case

The case provides clarification on the connection between Rule 29, the tribunal’s general powers and the specific rules that follow it, particularly those for disclosure. Case management orders between parties are therefore made under the wide and general power in Rule 29 and the powers under Rules 31 and 32 relate to orders in respect of non-parties.