Employment & Pensions Blog: Remedy Claim Struck Out

In the recent case of Kaur v Sun Mark Ltd & Ors [2024] EAT 41, the Employment Appeal Tribunal (the “EAT”) looked at whether a Tribunal was correct to strike out a remedy claim because the Claimant had destroyed evidence or lied about doing so.

Background

Ms Kaur (the “Claimant”) brought a claim in the Employment Tribunal ("ET") for sexual harassment, sex discrimination and victimisation against Sun Mark Ltd & Ors (the “Respondents”). The ET found that, contrary to the Equality Act 2010, the Claimant had been subjected to unwanted sexual attention, which created an offensive environment for her. The remaining claims were  dismissed and the matter was listed for a remedy hearing. The remedy hearing was stayed pending an appeal on her claim for victimisation, which was remitted back to the ET for reconsideration. 

In evidence presented by the Claimant, she had relied on evidence contained on a mobile phone and in a notebook. Neither item had been disclosed prior to the hearing and their existence only came to light during cross-examination of the Claimant. Following the Claimant's partial success at the hearing in her claims, the Respondents requested inspection of the notebook and mobile phone, which they considered were relevant and material to the issues. The Claimant resisted the application on the basis that they had no evidential value to the claim. The ET made no order for inspection. 

The Respondents appealed the decision and on reconsideration the ET held that there was a credible argument as to why the Claimant should allow inspection of her notebook and mobile phone. As a result, a further hearing to consider this evidence was listed. During the subsequent hearing the Claimant stated that her husband had destroyed the notebook in December 2020 and it was found that she had told her legal representative in May 2021 that she had destroyed the phone. It should however be noted that the Claimant did not suggest that these items had been destroyed at the time she resisted the Respondents’ application for inspection. 

On the basis of the above, the Respondents applied for the remedy hearing to be struck out. 

Following consideration of the Respondents’ application for strike out, and following evidence given by the Claimant as to when she said that these items had been destroyed, the ET concluded that the Claimant's evidence was not credible, and she had either destroyed the notebook and phone upon realising that inspection of these items would be ordered, or was lying about having done so. Under Rule 37(1)(b) of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (“ET Rules”), an ET has the power to strike out a remedy claim if the manner in which the proceedings are conducted was scandalous, unreasonable, vexatious or if it was no longer possible to have a fair remedy trial. 

The ET, not having taken the decision lightly, ultimately found that it was no longer possible to have a fair remedy hearing given that pertinent information was no longer accessible. The remedy claim was struck out in its entirety, meaning that no award of compensation was made to the Claimant. 

EAT Judgment

The Claimant appealed this decision and the EAT agreed with the findings of the ET. Essentially, the Claimant’s conduct was so plainly designed to stop any further enquiry into the reliability of evidence relevant to her claim, that it was no longer possible to have a fair trial, and therefore, the ET were bound to strike out the remedy claim. 

Comment 

This case is a reminder to parties of the ET's powers under Rule 37(1) of the ET Rules to strike out a claim at any stage of legal proceedings, if they have grounds to do so. However, this case does emphasise that ET judges are conscious of the “draconian effect” of a strike out and these powers will only be used in exceptional circumstances, to prevent injustice, and only if there is no suitable alterative course of action. 

If you require any further assistance or support, please contact a member of the Employment Team.