Strike out

Dishonesty might lead to strike out of your claim – beware! 

Dishonesty might lead to strike out of your claim – beware! 

In Kaur v Sun Mark and others the Employment Appeal Tribunal (EAT) held that the tribunal had been correct to strike out Ms Kaur’s remedy claim because she had either destroyed evidence or been untruthful about doing so.

Ms Kaur had been partially successful in claims against the Respondents for sexual harassment, victimisation and discrimination. During the tribunal proceedings Ms Kaur relied on notes taken in a contemporaneous notebook and an audio recording she had made. The victimisation claims were returned to the tribunal for reconsideration and remedy (financial recompense) was stayed pending that outcome. The Respondents’ requested to look at the notebook and recording again. This application was opposed by Ms Kaur and she eventually stated, at the end of the claim, that she had destroyed the evidence. In response, the Respondents applied to have Ms Kaur’s claims struck out which would then mean she was not entitled to any remedy.

The tribunal determined that Ms Kaur had either destroyed the evidence when she realised it would be re-inspected or was being untruthful about having done so. Under the Employment Tribunal Rules of Procedure 2013 the tribunal has the power to strike out a remedy claim if the manner of conducting proceedings has been scandalous, unreasonable or vexatious, or if the conduct meant it was no longer possible to have a fair hearing. The tribunal concluded that a fair hearing was no longer possible and struck out the remedy claim.

Ms Kaur appealed. The EAT reached the same conclusion. It was appropriate and proportionate for the remedy claim to be struck out. 

This is a salutary lesson about the conduct of parties. Evidence must never be destroyed and if relevant to the case must always be available to the opposing side. Given Ms Kaur had been successful in some of her claims, it was a severe outcome to have the remedy outcome struck out. This case serves as a reminder to engage in litigation with clean hands and ensure you do not wilfully do anything that undermines your case or brings your conduct and therefore your reliability into question.

This blog was written by Elizabeth McGlone, Partner at didlaw