With the globalisation of trade and the increased prevalence of electronic data, issues concerning the disclosure of information in civil litigation procedures, including Employment Tribunals, are becoming ever more complex.
The basic requirement is that a party must disclose all relevant documents which are in its possession or under its control. However, one recent case highlights the difficulties which arise if the documents which should be disclosed are held outside the UK and obtaining them is beyond the court’s or tribunal’s jurisdiction.
This particular case involved Weatherford UK Ltd (WUL) and one of their employees, Vice President Mr Forbes. WUL is part of a group of companies which provides services to the oil and gas industry and Mr Forbes was responsible for the company’s operations in sub-Saharan Africa. Importantly, WUL’s parent company is Weatherford International Limited (WIL) which is incorporated in Bermuda and has its headquarters in Houston, Texas.
Following allegations of violations of export control laws, Mr Forbes resigned having been requested by WUL to do so. He subsequently lodged a claim for unfair dismissal against WUL.
Before Mr Forbes employment with WUL terminated, WIL’s attorneys carried out an investigation into the allegations and interviewed Mr Forbes, on several occasions, as part of the process.
During the Employment Tribunal proceedings, Mr Forbes was granted an Order requiring WUL to disclose (amongst other things) all the transcripts, notes and minutes of the meetings he had with WIL’s US attorneys. But WUL appealed against the Order on the bases that the Employment Tribunal did not have the power to make the order as the information was held at their headquarters in Texas over which the Tribunal had no legal control.
The Employment Appeal Tribunal (EAT) noted that Mr Forbes had not asserted that the documents he sought were located in or held by anyone in Great Britain. Indeed, the inference was that the documents, which had been prepared by the US lawyers for their US clients, were in fact located in the US. Still, the EAT concluded that it was not within the power of the original tribunal to make the order for specific disclosure “ in essence, the Employment Tribunal’s powers are limited to Orders that apply within Great Britain.
So what does this mean for UK employers? Well, the decision certainly highlights the potential difficulties with disclosure of information where one of the parties is part of an international group of companies and the information is held by another company within the group which is based outside the UK. Such difficulties may create a shield. However, unless the disclosure is made voluntarily, separate legal proceedings in the overseas jurisdiction in which the documents are held
may be required. These may prove to be disproportionally expensive for all parties and cause delay in the Tribunal proceedings. From an employee’s perspective, if relevant documents are not made available this could have significant bearing on the general fairness of the tribunal proceedings and may have an impact on their outcome.