10 February 2023|
ET / EAT Procedure
Litigation, Disclosure and ADR Procedure
£637,000 employment claim struck out after Claimant destroyed evidence
On Wednesday 8th Feb 2023, an entire claim for £673,000 in damages in struck out at Watford Employment Tribunal. In Ms R Kaur v Sun Mark Ltd & Others (Case no. 3334669/2018), Suzanne McKie KC (acting for all the Respondents) was successful in persuading the Tribunal to strike out all of the Claimant’s claim to a remedy under rule 37(1)(b)/(1)(e) of the ET Rules of Procedure 2013.
The striking out followed the Claimant’s decision to deliberately destroy documents which were relevant to the remedies hearing and which could have resulted in the ET reconsidering its findings on liability. EJ Hyams described the Claimant’s justifications for destroying these documents to be “evasive and objectively unjustified” and “nonsensical”. The judge also considered her conduct to be “inimical to the doing of justice”. EJ Hyam’s decision is a ground-breaking and exceptional one, given that the ET rarely strikes out a claim or remedy after the liability judgment has been promulgated. Claimant’s counsel argued for the imposition of a costs order instead, but the Judge regarded that as wholly insufficient given the deliberate and dishonest acts of the Claimant. He decided a fair trial of remedy was no longer possible.
It is a sobering moment for the Claimant who won her sexual harassment and gender harassment claims at first instance.
The Respondents repeatedly sought for the re-inspection of the Claimant’s personal notebook and her second mobile phone (on which she had recorded a critical phone call). However, it transpired during a Preliminary Hearing in October 2022 that the Claimant had destroyed these items,18 months after they were first requested and despite knowing that the Respondents were seeking re-inspection.
EJ Hyams concluded that the Claimant’s conduct was “intended to prevent the [R]espondents and the tribunal from considering further material which could have affected the outcome of the proceedings in a significant way”.
Suzanne McKie KC has acted for the Respondents in Sun Mark (instructed by Sarah Garth of Keystone Law) throughout all stages of proceedings.