Diya Sen Gupta QC, instructed by Latham & Watkins (London) LLP, represented Tim Sarnoff in the Court of Appeal in this appeal which concerned the extent of the Employment Tribunal’s (“ET”) power to make a disclosure order against a person outside Great Britain.
Mr Sarnoff is a US citizen who lives and works in the United States. He is one of a number of respondents to a claim before the Employment Tribunal (ET) presented in December 2017. The claimant alleges that she was sexually harassed by Harvey Weinstein (the third respondent). She alleges that Mr Sarnoff and a number of others failed to prevent such harassment, and thereby “knowingly helped” him to carry out those unlawful acts, contrary to section 112 of the Equality Act 2010. Mr Sarnoff strenuously denies the allegation and has contested the claim on numerous grounds, including that the ET does not have territorial jurisdiction.
On 21 September 2018, the ET made a general order against all the parties for disclosure of relevant documents. Mr Sarnoff contended that the ET did not have power to make a disclosure order against him, relying on the express wording of rule 31 of the ET Rules of Procedure 2013, which provides that “the Tribunal may order any person in Great Britain to disclose documents …” (emphasis added). The ET disagreed and refused to vary or revoke its order.
Mr Sarnoff appealed to the Employment Appeal Tribunal, which handed down judgment on 6 May 2020 dismissing Mr Sarnoff’s appeal but granting him permission to appeal to the Court of Appeal. The EAT (Kerr J) disagreed with the approach of the ET but held, in reliance on the Marleasing principle, that rule 31 should be construed in a way which is in harmony with EU rights so that the words “in Great Britain” must be taken to refer to the location of the employment tribunal making the disclosure order, not the location of the person against whom the order is made.
The Court of Appeal (Underhill LJ, Vice-President of the Court of Appeal (Civil Division); Bean, Phillips LJJ) heard the appeal on 24 November 2020. In a judgment handed down on 15 January 2021, the Court dismissed Mr Sarnoff’s appeal, adopting a construction of rule 31 which was different from the EAT. It held that the power of the ET to make disclosure orders against parties derived from its general case management powers under rule 29 of the ET Rules of Procedure, and that rule 31 is concerned only with disclosure against non-parties. That being so, the words “in Great Britain” would not apply.
The full judgment is available here.