Ramandeep Kaur v Sun Mark Ltd & Ors

Under rule 37(1)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, strike-out for unreasonable conduct requires an assessment of whether the conduct has made a fair hearing impossible and whether strike-out is proportionate. The sanction is not punitive.

Deliberately destroying, or dishonestly claiming to have destroyed, evidence that is relevant or potentially relevant to a remedy claim may make a fair hearing impossible where it prevents proper examination of the evidence and frustrates the administration of justice. The tribunal must consider lesser measures, but need not adopt one which cannot permit a just determination.

The claimant had partly succeeded in claims under the Equality Act 2010. Her remedy claim included compensation for injury to feelings, personal injury and loss of earnings. During the liability hearing she disclosed a notebook containing relevant entries and a second mobile telephone used to record part of a material conversation.

Following an earlier appeal and remittal of victimisation issues, the respondents sought inspection of those original items. In October 2022 the claimant first said that both had been destroyed in December 2020. Employment Judge Hyams found that account untrue: she had either destroyed the items in late October 2022, when inspection was likely, or lied about their destruction. He struck out the remedy claim.

The claimant appealed against the strike-out, contending that the evidence was immaterial, the findings were flawed, and a lesser sanction should have been imposed.

1. Appeal dismissed. The Employment Tribunal had applied the correct approach to strike-out for the manner in which proceedings had been conducted. It had addressed the requirements identified in Bolch: unreasonable conduct in the proceedings, whether a fair trial remained possible, proportionality, and whether a lesser consequence was appropriate.

2. The Employment Judge was entitled to reject the claimant’s explanation that the notebook and telephone had been destroyed in December 2020. The prolonged failure to disclose their alleged destruction despite repeated requests for inspection, together with the inconsistencies and implausibility in her accounts, permitted the finding that she had either destroyed them in late October 2022 or lied about doing so.

3. That conduct occurred in the course of continuing proceedings. In any event, the remedy hearing had already been listed and the evidence remained potentially material to remedy and to the live appeal process. The notebook had supported the claimant’s case on the impact of the unlawful conduct. Examination of it, and potentially of the telephone, could have tested the reliability and completeness of that evidence.

4. The Employment Judge permissibly held that the conduct was designed to prevent further inquiry and had made a fair hearing of remedy impossible. The respondents’ earlier failure to seek inspection or an adjournment, and the original tribunal’s earlier assessment of the notebook, were relevant countervailing factors. They did not require the tribunal to proceed when the claimant’s conduct had prevented potentially significant evidence from being investigated.

5. Strike-out was a draconian but proportionate response. A costs order or restricting aggravated damages would not cure the inability fairly to determine the claimant’s case on the alleged effect of the respondents’ conduct. The claimant’s remedy claim was therefore properly struck out.

• Employment Appeal Tribunal: The claimant’s appeal against the strike-out of her remedy claim was dismissed: [2024] EAT 41.

• Watford Employment Tribunal: Employment Judge Hyams struck out the claimant’s claim for a remedy for breaches of the Equality Act 2010. The decision was sent to the parties on 8 February 2023.

• Earlier Employment Appeal Tribunal proceedings: An earlier appeal was allowed in part and victimisation issues were remitted for reconsideration. The claimant later withdrew those issues.