Sarnoff v The Weinstein Company LLC

Under rule 31 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the words “in Great Britain” identify the place and jurisdiction of the Employment Tribunal making the disclosure order. They do not require the person ordered to disclose to be physically present in Great Britain when the order is made.

This strained but permissible construction avoids arbitrary and unjust results, accords with the overriding objective, and reflects the distinction between disclosure and compulsory attendance. Rule 32 continues to limit witness-attendance orders to persons in Great Britain.

The claimant brought Employment Tribunal proceedings alleging sexual harassment and related wrongdoing against a number of respondents. The appellant, the tenth respondent, lived and worked in the United States. He challenged territorial jurisdiction, but remained a party after the Employment Tribunal declined to determine that issue separately.

The Tribunal ordered disclosure. It later refused the appellant’s application to set aside, suspend or revoke that order, holding that it could order disclosure against a person outside Great Britain. The appellant appealed, principally contending that rule 31 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 applied only to a person physically present in Great Britain when the order was made.

The central issue was whether rule 31 conferred power to order disclosure from such a respondent.

1. Appeal dismissed. The Employment Judge had power to order disclosure against the appellant, notwithstanding that he was outside Great Britain. The Employment Appeal Tribunal reached that result on a construction different from that adopted below.

2. Read literally, rule 31 appeared to limit disclosure orders to persons physically present in Great Britain. That reading produced arbitrary and near-absurd consequences. It would enable either a claimant or respondent to avoid disclosure merely by leaving Great Britain, while leaving only disproportionate procedural sanctions available. It would also make disclosure turn on a person’s transient physical presence.

3. Rule 29’s general case-management power did not independently authorise disclosure orders beyond rule 31. Disclosure is governed by the bespoke rules. Nor could a person resident abroad be treated as being in Great Britain merely by defending proceedings there.

4. The court rejected rectification based on an alleged drafting error. The legislative intention was opaque and did not satisfy the requirements for that course. However, the words “in Great Britain” were linguistically capable of referring to the tribunal’s geographical jurisdiction and the place where disclosure was to be made.

5. That construction was adopted because it accorded with rule 2’s overriding objective of dealing with cases fairly and justly, avoided the unjust consequences of the literal reading, and reflected the position for disclosure in the county court. Accordingly, rule 31 permits disclosure orders against persons outside Great Britain. By contrast, rule 32 permits an attendance order only against a witness present in Great Britain.

• Employment Appeal Tribunal: Appeal dismissed. The Employment Judge’s disclosure order was upheld, but on a different construction of rule 31.

• Employment Tribunal: At a preliminary hearing, Employment Judge Tayler refused to set aside, suspend or revoke disclosure orders sought against the tenth respondent, who was outside Great Britain.