Tribunal strikes out claim due to claimant's deceptive conduct
In a rare decision, a Tribunal has struck out a claim at the remedy stage after finding a claimant had destroyed relevant evidence.
Liability and remedy stages of Tribunal proceedings
The so-called 'final hearing' in a Tribunal claim is the hearing that will deal with liability in the claim. In other words, this is the hearing that will determine whether the claimant is successful in their claim or whether the respondent has been able to defend its position. Sometimes remedy is dealt with at the end of the final hearing. However, in more complex cases, judgment will be reserved, or there may be insufficient time to consider remedy at the end of the hearing. In these cases, a separate 'remedy hearing' will be arranged.
The case of Kaur v Sun Mark Ltd (summarised below) is interesting because the claimant succeeded in some of her claims at the liability stage. However, due to her subsequent conduct, the claims were struck out at the remedy stage. This meant she ultimately walked away with no compensation.
Application for inspection
In this case, the claimant partially succeeded in sexual harassment, discrimination and victimisation claims. At the liability hearing, the claimant said she had used her mobile phone to record a conversation which formed part of her claims. She also said she had used a notebook to contemporaneously record events that occurred during the period of her claim.
The mobile phone and the notebook were relevant to the ongoing proceedings. The respondent therefore sought to have them forensically examined. The claimant resisted the respondent's requests and finally said that both the mobile phone and the notebook had been destroyed.
The Tribunal concluded the claimant had either recently destroyed the items in order to avoid inspection, or that she was lying about having destroyed them.
Strike-out power
The Tribunal found that the claimant's conduct was 'scandalous, unreasonable or vexatious' for the purposes of its power to strike out claims under rule 37(1)(b) of the Employment Tribunal Rules of Procedure 2013. The Tribunal considered that it was no longer possible to have a fair trial of the remedy claim so that it was proportionate and appropriate for the claim to be struck out.
Appeal
The claimant appealed to the Employment Appeal Tribunal (EAT). The EAT dismissed her appeal. The EAT found that the Tribunal had been entitled to hold that the claimant's behaviour, in preventing inspection of the mobile phone and notebook, was designed to frustrate justice. Notwithstanding the draconian effect of an order to strike out the claim, it was open to the Tribunal to hold that a fair trial was no longer possible.
Learning points
This case acts as an example of where a Tribunal may consider it appropriate to strike out a claim at the remedy stage, even where the claimant has succeeded at the liability stage. These cases are highly unusual, not least because of the draconian nature of a strike-out order. This case also serves as a stark reminder to litigants of the importance of preserving evidence throughout the entirety of Tribunal proceedings.