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Striking Out a Claim

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Was a tribunal correct to strike out a remedy claim because the Claimant had destroyed evidence or lied about doing so?

Yes, held the Employment Appeal Tribunal in Kaur v Sun Mark and others. 

The Claimant had succeeded (in part) in claims for sexual harassment, victimisation and discrimination. Relevant evidence included the Claimant’s ‘contemporaneous’ notebook and a recording she had made. The claims of victimisation were sent back for reconsideration. Remedy was stayed pending this. The Respondents asked to re-inspect the notebook and recording. The Claimant resisted this application, eventually saying that she had destroyed them at the end of the tribunal claim. The Respondent applied to have the remedy claim struck out.

The tribunal held that the Claimant had either destroyed the evidence when she realised it would be re-inspected or was lying about doing so. Under Rule 37(1)(b) of schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, the tribunal had the power to strike out the remedy claim if the manner in which the proceedings had been conducted was scandalous, unreasonable or vexatious, or if it was no longer possible to have a fair hearing. The tribunal concluded it was no longer possible for there to be a fair trial of the remedy claim and that it should be struck out.

The EAT agreed with the tribunal. Dealing with the case justly meant that it was both proportionate and appropriate for the remedy claim to be struck out.