Ms R Kaur v Sun Mark Ltd and Others: [2024] EAT 41

By Associate, James Howarth.

The Claimant initially brought complaints of direct sex discrimination, harassment related to her sex; sexual harassment; and victimisation against the Respondent in 2018.

During the initial Tribunal hearing, the Claimant made reference to a notebook which she said contemporaneously recorded events related to the harassment and discrimination she suffered. She also referred to a covert phone recording she made in 2018, which she said demonstrated the derogatory remarks made to her.

During disclosure prior to the hearing, she had disclosed to the Respondent a limited transcript of the phone recording, but not the recording itself. Also when the notebook was mentioned at the hearing during cross examination, the Respondent’s solicitors asked as to why it had not been disclosed. This resulted in a 200 page notebook being disclosed during the 2018 hearing.

Despite this late disclosure, as well as the Claimant not being considered an entirely reliable witness (she was considered to have grossly exaggerated her account) she was ultimately successful with elements of her claim.

A remedy hearing was scheduled to determine the compensation to be paid to the Claimant, with her Schedule of Loss standing at £673,055.65. Before this hearing could take place, the Respondent appealed against the original decision. A large element of the appeal was around the phone recording and the notebook. The Respondent wanted both to be forensically examined, considering the notebook was disclosed during the hearing, and the recording was limited and key to the appeal. As such, it requested the disclosure of both items.

In this case, as in all such cases, the parties were given directions on disclosure, in that any documents relevant to the issues identified ought to be disclosed. Further, parties ought to disclose documents that come to light after ordered disclosure, as disclosure is an ongoing duty.

Despite requesting the items, the Claimant did not release either to be inspected. This led to the Respondent making an application for the inspection of the items during a preliminary hearing in February 2022. Although no specific order was made for disclosure at that time, it was accepted that they would both be disclosed at the relevant time as part of the appeal. Despite this, the Claimant continued to resist disclosure, leading to a further preliminary hearing in October 2022.

Shortly before this hearing, she wrote to the Tribunal to say for the first time that her husband had burned the notebook, and she had discarded the phone (by throwing it in the river). As such, neither could be disclosed. There was inconsistency in the Claimant’s account as to these items, as she later provided different accounts as to who destroyed what, when and why. For example, at one point she said the phone was destroyed because it contained intimate pictures of her and her partner, but later contradicted this to say it was destroyed because it was old and damaged.

Ultimately it was her position that both were destroyed in December 2020 prior to the Respondent’s appeal. This is despite her not stating this during any of the preliminary hearings after this date. The Tribunal found the Claimant not to be credible, and concluded that the items were likely destroyed in October 2022, shortly before a preliminary hearing to determine their disclosure.

Given the Tribunal’s findings, it concluded that the Claimant’s conduct was scandalous, unreasonable, and vexatious, within the meaning of rule 37(1)(b) of the Employment Tribunal Rules of Procedure 2013. Such conduct entitled the Tribunal to strike out the Claimant’s claims. The Tribunal acknowledged, that striking out the Claimant’s remedy claim would be a draconian step, particularly as she had partially succeeded on liability, however decided that the circumstances were exceptional, and here it was no longer possible to have a fair hearing. The items were fundamental to the case, and the Tribunal decided that the deliberate destruction of the items, and the Claimant lying in saying when they had been destroyed, was intended to prevent the Respondent and the Tribunal from considering further material which could have affected the outcome of the proceedings.

The Claimant appealed this decision, however her appeal was dismissed by the Employment Appeal Tribunal. They decided that that correct tests had been applied by the original Tribunal, and they were correct to find that the Claimant had either destroyed the evidence in late October 2020 or was lying about having done so.

This highly unusual case, demonstrates the importance of adhering to Tribunal orders and the parties duties in relation to disclosure. It is vital that contemporaneous documents are produced, disclosed and retained in relation to Tribunal proceedings. At Tribunal, you are under a duty to disclose all those documents which are in your possession or control which are relevant to the issues in the proceedings, even if they are not helpful to your case.

The fact that the Claimant didn’t adhere to this duty in the case meant that despite partially winning her initial hearing, she lost up to £673,055.65.

If you would like any further advice on this, please get in touch by calling 0161 832 3434 or by sending an email to info@kuits.com .