does the employment tribunal have the power to make an Order for disclosure against a party who is outside Great Britain?
The Court of Appeal (CA) held yes in Sarnott v YZ.
The Claimant alleges that she was sexually harassed by Harvey Weinstein and the Respondent (and others) “knowingly helped” him carry those unlawful acts, contrary to section 112 of the Equality Act 2010.
The Respondent is a US citizen and lives and works in the US. An Order of disclosure was made against him as a part of ordinary case management. The Respondent appealed this decision arguing that because he lived in the US (and not Great Britain), the Employment Tribunal (ET) had no power to Order disclosure against him. He relied on the express wording of Rule 31 of the ET Rules of Procedure which states that “the Tribunal may order any person in Great Britain to disclose documents…” (emphasis added).
CA disagreed. It held that the ET’s powers to make orders against parties were contained in its general case management powers under Rule 29. So, where the person is a “party”, i.e., a named Respondent, then Rule 29 will apply and there is no restriction in respect of a person’s location.
The full judgement is available here.
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