Employment Cases Update

Sarnoff v YZ [2021] EWCA Civ 26

Date published: 21/01/2021

Appeal against an order for disclosure that was made against a party who was not in Great Britain. Appeal dismissed.

In 2018, the ET made a general order against all the parties for disclosure of relevant documents. One of the parties was a US citizen who lived and worked in California. He appealed against the order, relying on rule 31 of the Employment Tribunal Rules of Procedure. The basis of the Appellant's application was that the Employment Tribunal's power to make an order for disclosure derives (only) from rule 31 and is accordingly only available against a party who is "in Great Britain". The ET declined to accept that rule 31 was concerned only with disclosure against non-parties, but held that the Tribunal nevertheless retained the power to make an order for disclosure against a party outside Great Britain because of the provision in the second sentence of rule 29 that the particular powers identified in the following rules did not restrict the general case-management power which it conferred. The EAT did not accept that argument and held that the power to make the impugned order did indeed derive from rule 31; but the EAT judge felt able, in reliance on the Marleasing principle, to give the words "in Great Britain" what he accepted was a strained construction by which they "must be taken to refer to the location of the employment tribunal making the disclosure order, not to the location of the person against whom the order is made". The Appellant appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal. The relevant power derives from rule 29 and rule 31 is concerned only with disclosure against non-parties: that being so, the words "in Great Britain" simply do not apply.

Read the full text of the judgment on BAILII or download the file by clicking the link below.