The EAT has ruled for the first time that an employment tribunal in Great Britain can order disclosure of documents by a party who is outside Great Britain, even though the relevant tribunal rule only provides that the tribunal "may order any person in Great Britain to disclose documents or information".
The EAT rejected the argument that the tribunal's general case management powers could be used, but held that the reference to being in Great Britain in the specific disclosure rule should be construed as referring to the location of the tribunal, not the person against whom the order is made. Although this requires a "strained construction", a literal construction would be contrary to the overriding objective and the right to a fair trial, and would produce arbitrary results. The EAT noted, obiter, that a witness order can still only be made against a person who is physically present in Great Britain.
Permission to appeal to the Court of Appeal has been granted. (Sarnoff v XY)
Update 20 January 2021: The case has now been heard by the Court of Appeal. The Court agreed that the tribunal could order disclosure by a party outside of Great Britain, although based on different reasoning. In its view, the special disclosure rule was properly to be construed as covering only non-parties (against whom disclosure orders cannot be made if they are outside Great Britain), and the tribunal's general case management power can be used to order disclosure against a party wherever they are based.
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