A former member of the board of the Weinstein Company does have to comply with a disclosure order in a sexual harassment case despite not living in the UK, the Employment Appeal Tribunal has ruled.
Mr Justice Kerr accepted a “strained construction” of the 2013 employment tribunal rules of procedure to avoid the “unjust and near absurd” consequences of a literal construction that would have left the executive beyond the reach of a tribunal order.
The anonymous claimant alleges she was sexually assaulted and harassed by Harvey Weinstein, who is currently serving a prison sentence in the USA for sex offences.
The other nine respondents are companies and individuals with which he is or was associated or worked for him. The individuals are accused of knowingly helping Mr Weinstein carry out the unlawful acts of assault and harassment.
One of them, Tim Sarnoff, who denies doing so, challenged a decision of Employment Judge Tayler that the tribunal has the power to make a disclosure order against him because he lived and worked in the USA.
Rule 31 of the 2013 rules provides: “The Tribunal may order any person in Great Britain to disclose documents or information to a party (by providing copies or otherwise) or to allow a party to inspect such material as might be ordered by a county court or, in Scotland, by a sheriff.”
Mr Sarnoff argued that the words “any person in Great Britain” must be interpreted literally.
Kerr J listed several “odd” consequences if this were the case. It would mean that “many thousands of wrong orders for disclosure” have been made by tribunals.
“In my experience, such orders are commonplace and tribunals often do not trouble to ask themselves where the disclosing party is. That does not rule out the literal construction but is a noteworthy consequence of it.”
Such an interpretation would have to apply to claimants too, meaning “that a person may bring a claim, leave Great Britain, pursue it from abroad and thereby avoid giving disclosure”.
Also, a person who came from overseas to give live oral evidence at the tribunal could be ordered to make disclosure, but not if they gave evidence from abroad over a video link.
These and other consequences were not adequately mitigated by the alternative, the 1970 Hague Convention. The procedure it outlined for making disclosure requests was “cumbersome, slow and expensive”, the opposite of how litigation in employment tribunals was supposed to work, Kerr J said.
He continued: “In the end, I have concluded that I should accept the claimant’s strained construction to avoid the unjust and near absurd consequences of the literal construction.”
This was that the words “in Great Britain” must be taken to refer to the location of the employment tribunal making the disclosure order, not to the location of the person against whom the order is made.
“The words are capable of bearing the unusual meaning that the reference to Great Britain is to the seat of the tribunal under whose auspices the disclosure is made, the geographical jurisdiction in which the disclosure falls to be made and the place where the tribunal is located.”
This interpretation accorded with the overriding objective in rule 2, Kerr J said, and also replicated the position under the CPR.
“It follows that under rule 31 of the 2013 ET Rules, the person ordered to give disclosure need not be physically present in Great Britain at the time when the order is made. Under rule 32, by contrast, an order can only be made for the attendance of a witness who is present in Great Britain.”
Though his reasons were different from those of Judge Tayler, he upheld the decision.