Does an employment tribunal have the power to make an Order for disclosure against a party who is not present in Great Britain?
Yes, held the Court of Appeal in Sarnoff v YZ.
The Claimant brought a claim against the Respondent, a board member of a US company, for "knowingly assisting" in sexual harassment carried out by Harvey Weinstein, a co-President of the company. The Respondent resides in the US. An Order for disclosure was made against him as part of case management by the tribunal. He appealed against the order, arguing that there was no power to Order disclosure against a person who was not in Great Britain.
The Court of Appeal held that ET rule 31, which stated that the tribunal "may order any person in Great Britain to disclose documents", applied only to orders for disclosure against non-parties. Rule 29, which contained the tribunal's general case management powers, was found to be the source of the power to make orders for disclosure against parties, and there was no such territorial limitation on that power, meaning that the tribunal had the power to make orders for disclosure by parties, irrespective of the fact that they were not within Great Britain.
Thanks to Will Young of Outer Temple Chambers for preparing this case summary