Employment tribunal can order disclosure against a party who is not in Great Britain (Sarnoff v YZ)

There is no geographical restriction on an employment tribunal’s power to order disclosure against a party to the proceedings. This is because the tribunal’s power to order disclosure against a party derives from its general case management powers set out in Rule 29 of the Employment Tribunals Rules of Procedure and not under Rule 31, which applies only in respect of orders for disclosure against non-parties, according to the Court of Appeal.

Sarnoff v YZ [2021] EWCA Civ 26

What are the practical implications of this case?

It is commonplace for employment tribunals to make orders for disclosure against parties without making enquiries about their whereabouts, so the outcome of this appeal will maintain rather than cause any change to that practice.

Interestingly, despite the employment tribunal, the EAT and the Court of Appeal all reaching the same outcome as to the nature of the tribunal’s power in respect of disclosure, each of them reached that conclusion through different reasoning.

Due to the difficulties involved in grappling with the reference in Rule 31 to ordering disclosure against ‘any person in Great Britain’ the Court of Appeal ultimately decided that:

• the tribunal’s general power to order disclosure against parties was under Rule 29 which has no geographical limits; and
• the more restricted power in Rule 31 to be able to order disclosure against any person in Great Britain applies only in respect of orders made against non-parties.

Court details

• Court: Court of Appeal
• Judges: Lord Justice Underhill, Lord Justice Bean and Lord Justice Phillips
• Date: 15 January 2021

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