Employment Tribunal Upholds Strike-Out Decision Due to Destruction of Evidence in Kaur v Sun Mark Ltd & Ors [2024] EAT 41

Citation: [2024] EAT 41
Judgment on


The case of Ramandeep Kaur v Sun Mark Ltd & Ors [2024] EAT 41 concerns an appeal against a decision to strike out the claimant’s remedy claim for breaches of the Equality Act 2010. The Employment Appeal Tribunal (EAT) was tasked with reviewing the Employment Tribunal’s (ET) application of legal principles surrounding the strike-out powers under Rule 37(1)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, pertaining to the manner in which proceedings have been conducted by a party.

Key Facts

Ms. Ramandeep Kaur succeeded in part on her claims of sexual harassment, discrimination, and victimisation at the initial ET. However, during these proceedings, two items of physical evidence—a notebook and a mobile phone, which contained relevant information to the case—were disclosed as existing. The existence of these items became central on appeal, with the respondents requesting re-inspection post-verdict, leading to questions regarding their current availability and integrity. The claimant indicated that these items had been destroyed following the hearing, triggering the respondents’ application for a strike-out on grounds that a fair trial was no longer possible.

The following legal principles were pivotal in the determination of this case:

  1. Rule 37(1)(b) Employment Tribunal Rules 2013: This rule allows for the strike-out of a claim at any stage if proceedings have been conducted by or on behalf of a claimant in a manner that is scandalous, unreasonable, or vexatious and thereby impedes the possibility of a fair trial.

  2. Proportionality and Fair Trial: As referenced in Abegaze v Shrewsbury College of Arts & Technology, before striking out a claim under Rule 37(1)(b), an ET must consider whether the conduct in question was scandalous, unreasonable, or vexatious; whether a fair trial is still possible; whether imposing a strike-out is a proportionate sanction; and whether a lesser sanction might be appropriate.

  3. Conduct “In the Course of Proceedings”: The EAT in Bolch v Chipman specified that the conduct leading to a potential strike-out must occur “in the course of proceedings.”

  4. Four-Stage Approach from Bolch: This approach requires assessing whether the proceedings were conducted unreasonably, whether a fair trial can still occur, the proportionality of the remedy to the conduct, and if a less severe consequence might be appropriate.

  5. Destruction of Evidence: Logicrose Ltd v Southend United Football Club Ltd emphasizes that intentional suppression of critical evidence can justify a party’s exclusion from proceedings to ensure a fair trial.

  6. Judicial Discretion: The EAT emphasizes that the ET possesses judicial discretion, tempered by principles of fairness and justice per the overriding objective, in making a strike-out decision.


The EAT dismissed the appeal, upholding the ET’s decision to strike out the remedy claim, concluding:

  • The ET correctly applied the legal tests and was entitled to find the claimant either destroyed the evidence in question or misled the Tribunal regarding its destruction.
  • The ET judged the evidence as relevant to continuing proceedings, with the claimant’s behavior designed to frustrate the delivery of justice.
  • The ET’s decision that it was no longer possible to have a fair trial of the remedy claim and that striking out was a proportionate and just response was within its judicial discretion.


In the case of Kaur v Sun Mark Ltd & Ors, the EAT supported the ET’s application of legal principles in determining that the claimant’s alleged conduct obstructed a fair trial. Intentional destruction of evidence, or deceptive claims about such destruction, constituted vexatious or unreasonable conduct, justifying a strike-out as the most appropriate remedy. This decision reaffirms the judiciary’s discretion in administering justice and the rigorous application of procedural rules to maintain equity and integrity in employment proceedings.