Claimant Who Destroyed Evidence Before Damages Hearing Gets Her Claim Struck Out

In the case of Kaur v Sun Mark Ltd and others, the Claimant had successfully shown the Employment Tribunal (ET) that she was a victim of sexual harassment, discrimination, and victimisation.  Following an appeal by the Respondent on the Victimisation claim, the Respondent sometime in May 2021, requested disclosure to re-visit the evidence by having an expert investigate the Claimant’s evidence.  The application for disclosure was for the Claimant’s mobile phone and notebook which contained recorded conversations with the Respondent.

However, the Claimant had failed to inform the Respondent or the ET until 30 October 2022, the day before the Preliminary Hearing, that both the notebook and the mobile phone had been destroyed.

As a result, the ET had struck out the Claimant’s claim of £673,000.

The Claimant appealed the ET’s decision.

The Employment Appeal Tribunal (EAT) had to determine whether the ET’s decision was fair.

The Claimant’s credibility was undermined when her recollection of what happened to the notebook and the mobile phone, varied from her previous explanation during an extensive cross examination.

The Claimant initially stated that her fiancé destroyed the notebook when he read the contents because he was upset with what she had written.  She later said that her husband destroyed the notebook because she wanted to get on with her life.  Further, the Judge questioned the Claimant’s conduct because she failed to tell the Respondents that she had destroyed the notebook while she knew they wanted to re-inspect it.

In addition to the notebook, the Claimant’s account for destroying the phone changed from it containing intimate pictures and memories, to the fact that it was ‘old and had a cracked screen’.

The EAT held the phone and the notebook were important factors to consider when assessing the level of damages awarded to the Claimant.  One of the points the Judge made was, if the Claimant had written in the notebook about her feelings and/or her mental health, this would have been important to determine the level of compensation  she would have been awarded.  The EAT drew inferences from the Claimant’s conduct to purposely preventing a further investigation from taking place. Such conduct made it impossible for a fair trial of a remedy hearing due to the Claimant’s suspicious conduct.

Consequently, the EAT dismissed the appeal.