Sarnoff v YZ

The Employment Tribunal’s general case-management power extends to ordering disclosure by a party, including a party outside Great Britain. Rule 31 is directed to disclosure against non-parties, so its territorial limitation does not govern disclosure between parties. The particular powers in the rules do not restrict the general power in rule 29. That construction is supported by the rules’ structure and purpose and by the overriding objective, which requires fair case management and, so far as practicable, equal footing between the parties.

The respondent brought Employment Tribunal proceedings under the Equality Act 2010 against companies and individuals, including the appellant, alleging that the individuals knowingly helped sexual harassment by failing to prevent it. The Employment Tribunal made a general disclosure order. The appellant, who lived and worked in California, applied to set it aside on the ground that rule 31 permitted disclosure orders only against a person in Great Britain.

The Employment Appeal Tribunal dismissed his appeal, holding that the power derived from rule 31 but construing “in Great Britain” by reference to the tribunal’s location. The issue before the Court of Appeal was whether the Employment Tribunal had power to order disclosure against a party outside Great Britain.

1. Appeal dismissed. The Employment Tribunal had power to order the appellant, a party outside Great Britain, to give disclosure. Bean LJ and Phillips LJ agreed with Underhill LJ’s reasons.
2. Rule 29 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 confers a general power to make case-management orders. The particular powers in the following rules do not restrict that general power.
3. On a purposive and contextual construction, rule 31 is concerned with disclosure against non-parties. Its reference to “any person” is wider than the ordinary reference to a party; rule 32 forms a related provision concerning attendance and production by non-parties; and the limitation to persons in Great Britain would produce irrational and fortuitous results if applied to party disclosure.
4. Disclosure between parties is a routine aspect of case management and falls within rule 29. Special provision was made for non-party disclosure because it is non-standard and comparable to third-party disclosure under the Civil Procedure Rules. The Employment Tribunal Rules should not be construed through the prism of the CPR.
5. The appellant’s construction would create unequal treatment of parties and the possibility of avoiding disclosure by being outside Great Britain. It was therefore contrary to the overriding objective in rule 2. The court did not need to decide the EAT’s alternative Marleasing route.
6. Weatherford UK Ltd v Forbes [2011] UKEATS 0038/11 was distinguished because it concerned documents outside Great Britain and an order directed to a non-party. There was no order as to costs.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the Employment Tribunal’s power to order disclosure by a party outside Great Britain.
• Employment Appeal Tribunal: Kerr J dismissed the appeal on 6 May 2020, holding that the power derived from rule 31 and construing “in Great Britain” by reference to the tribunal’s location.
• Central London Employment Tribunal: Employment Judge Tayler declined to set aside the general disclosure order on 17 July 2019.