Employment tribunal: destruction of evidence: strike out

EMPLOYMENT TRIBUNALS

Destruction of evidence

Strike out

Case? Kaur v Sun Mark Ltd and others [2024] EAT 41

Facts? K complained of sexual harassment, sex discrimination and victimisation. Her claims were partly successful. The employer requested re-inspection of a notebook which K had disclosed and a mobile phone which allegedly contained a recording of a conversation which related to her complaints. K resisted the request and stated in October 2022 that she had destroyed the notebook and phone in December 2020. The ET decided that she had either destroyed them in October 2022 when the request was made or was not telling the truth. The ET decided, further, that K’s conduct meant that it was no longer possible to have a fair trial of the remedies issues. The claim was struck out. K appealed to the EAT.

Decision????? 1. The appeal was dismissed.

2. The ET had correctly applied the relevant legal tests.

3. The ET had been entitled to make its findings in relation to K’s conduct.

4. K’s behaviour had been designed to frustrate the doing of justice.

5. It had been open to the ET to decide that it was no longer possible for there to be a fair trial.

6. Although a strike out had a draconian effect, it was proportionate and appropriate for the remedies claim to be struck out. ?