Sarnoff v YZ

The Court of Appeal dismissed the appellant's challenge to an Employment Tribunal order for disclosure. The court held that the Tribunal had power to order disclosure against a party who was not physically in Great Britain by relying on the general case-management power in Rule 29 of the Employment Tribunal Rules of Procedure (Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013). The court concluded that Rule 31 is properly read as a particular power aimed at orders against non-parties, while Rule 29 provides the Tribunal with a general power to make case-management orders, including disclosure between parties, regardless of where a party happens to be located.

The reasoning rested on purposive construction, the structure and language of the Rules, and the overriding objective in Rule 2 to deal with cases fairly and justly. The court rejected the appellant's literal reading of Rule 31 as producing unintended, arbitrary or unfair consequences and distinguished the EAT decision in Weatherford UK Ltd v Forbes as concerned with non-party production of documents rather than disclosure by a party.

Background and parties: The respondent alleged sexual harassment and brought Employment Tribunal proceedings under the Equality Act 2010 against various employers and individuals, including the appellant, an independent director resident in California. The respondent relied on section 112 of the Equality Act 2010 for a knowing assistance claim against company executives. The Employment Tribunal made a general order for disclosure against all parties on 21 September 2018. The appellant applied to set that order aside; the application was refused by Employment Judge Tayler on 17 July 2019. On the single issue of whether the Tribunal could make a disclosure order against a person not in Great Britain, the appellant appealed to the Employment Appeal Tribunal (Kerr J), which dismissed the appeal on 6 May 2020. Permission was given to appeal to the Court of Appeal.

Nature of the application: The appellant sought to challenge the Tribunal’s power to make an order for disclosure against a party who is not in Great Britain.

Issues for decision: (i) whether the power to order disclosure against a party outside Great Britain derives from Rule 31 (which contains the words "any person in Great Britain"), or from the Tribunal’s general case-management power in Rule 29; (ii) whether the phrase "in Great Britain" in Rule 31 restricts the Tribunal’s ability to order disclosure by a party who is abroad; and (iii) whether a purposive or literal construction of the Rules should be adopted.

Reasoning and conclusion: The Court of Appeal (Underhill LJ, agreeing with Bean LJ and Phillips LJ) concluded that Rule 31 is best read as a particular power directed primarily at orders against non-parties (it parallels Rule 32, which addresses attendance and production by "any person"). The general power in Rule 29 to make case-management orders encompasses disclosure between parties and therefore allows the Tribunal to order disclosure by a party irrespective of that party's physical location. The court applied purposive construction to avoid outcomes that would produce unfairness or arbitrary results, relied on the overriding objective in Rule 2, and distinguished Weatherford (an EAT decision concerning non-party production and documents located abroad). The court accordingly dismissed the appeal.

Appeal dismissed. The Court of Appeal held that the Employment Tribunal had the power to order disclosure against the appellant. The correct construction is that Rule 31 is principally concerned with orders against non-parties, while the general case-management power in Rule 29 permits disclosure orders between parties, so the phrase "in Great Britain" in Rule 31 does not prevent the Tribunal from ordering disclosure by a party who is outside Great Britain. The court reached this conclusion by purposive construction and by reference to the overriding objective in Rule 2, to avoid consequences inconsistent with the rule-maker's intent.

Employment Tribunal made a general disclosure order on 21 September 2018; Employment Judge Tayler refused to set the order aside (decision dated 17 July 2019). The appellant appealed to the Employment Appeal Tribunal; Kerr J dismissed the appeal on 6 May 2020. Permission to appeal to the Court of Appeal was granted; the Court of Appeal heard the appeal on 24 November 2020 and delivered judgment dismissing the appeal on 15 January 2021 ([2021] EWCA Civ 26).