The case of Kaur v Sun Mark Ltd serves as a reminder of the importance of preserving evidence throughout a claim and the overarching disclosure obligations on both parties. The Employment Appeal Tribunal (EAT) upheld the strike out of claims for direct sex discrimination, sexual harassment and victimisation following the destruction of evidence by the claimant after the liability hearing. The EAT confirmed the Employment Tribunal’s (ET) decision to strike out the initially successful claim was proportionate as the destruction of evidence was seen as an attempt to prevent further investigation, thus obstructing the administration of justice.
What are the disclosure obligations in the ET?
Disclosure is where each party provides the other with the documents in their possession or control that are relevant to the issues in the claim. What is considered a document is wide-ranging so care should be taken when dealing with personal devices and notebooks as relevant documents can include text messages on personal phones and diary entries. All parties to proceedings are required to preserve relevant documents, regardless of whether they help or hinder their position. This obligation goes beyond just disclosing documents when ordered to do so. It underpins the general rule of fairness as it allows litigants to have a level playing field and enables the tribunal to make a fair determination of the facts.
There is an ongoing duty on parties in tribunal proceedings to disclose relevant documents. It is also vital to comply with any disclosure order. Not doing so can be seen as an attempt to prevent the court from being able to carry out its duties.
Failure to preserve relevant evidence or to notify the court why it has been destroyed or otherwise cannot be disclosed in a timely manner, can be seen by the tribunal as relinquishing the right to take part in a fair trial. Any act that could be seen as an attempt to hinder the tribunal’s examination of evidence and delivery of justice, must be avoided. Parties to tribunal ligation should remain cautious and actively ensure the preservation of evidence.
What happened in this case?
In Kaur v Sun Mark Ltd, the claimant’s remedy claim was dismissed as she had destroyed a notebook and a mobile phone which contained evidence relating to her claim of discrimination and victimisation. Before the remedy hearing, the respondent sought to have the two items forensically examined and these requests were resisted by Ms Kaur. A preliminary hearing was ordered to consider the respondent’s request. At this stage, it transpired that Ms Kaur had destroyed, or lied about destroying, both items, fearing a further forensic inspection which could have diminished the credibility of her case. The disappearance of the evidence meant that, in any event, a fair hearing of the remedy claim was no longer possible as the items that contained key evidence could not be re-inspected.
The ET decided that the conduct of Ms Kaur was scandalous, unreasonable and vexatious under the meaning of the ET rules, rule 37 (1)(b), thus striking her claim. The EAT affirmed the appropriateness of the decision.
What are the key takeaways from this case?
The case highlights a) how fundamental the preservation of (potentially) relevant evidence is, b) how important it is to comply with your obligations when ordered to disclose all documents and c) that the ET is well within its powers to act proportionally and appropriately in deciding to dismiss a claim under the ET rules. This is a reminder to litigants that all relevant or potentially relevant evidence should be preserved for the duration of the claim. This is not a one-off, passive obligation but rather an ongoing duty in the interests of both parties and the overall case.
