The claimant had succeeded (in part) on her claims of sexual harassment, discrimination and victimisation. A hearing on remedy was stayed pending an earlier appeal, which had resulted in the victimisation claims being remitted for reconsideration. At that stage, during May 2021, the respondents had requested re-inspection of a notebook, disclosed by the claimant during the original liability hearing, and a mobile phone, on which the claimant said she had recorded a conversation which formed part of her claim of discrimination and victimisation. Although resisting the respondents’ requests and applications for re-inspection of the notebook and phone, the claimant did not seek to suggest that those items had been destroyed until 30 October 2022, when she said she had in fact destroyed the notebook and phone in December 2020. Considering the claimant’s explanation in this regard, the ET concluded that she had either destroyed these items in late October 2022, upon realising that there was likely to be an order for inspection, or was lying about having done so. Finding this was conduct falling within rule 37(1)(b) ET Rules, the ET further concluded that it was no longer possible to have a fair trial of the remedy claim, and that it was proportionate and appropriate that that claim should be struck out. The claimant appealed.

Held: dismissing the appeal

The ET had applied the correct tests, as laid down in the case-law, and had been entitled to find that the claimant had either destroyed the evidence in issue in late October 2020 or was lying about having done so. In any event, it had permissibly concluded that the evidence was relevant, or potentially relevant, to the continuing conduct of the proceedings and that the claimant’s behaviour, in preventing further inquiry, was designed to frustrate the doing of justice. It had been open to the ET to hold that it was no longer possible for there to be a fair trial of the remedy claim and that, notwithstanding the draconian effect of striking out that claim, dealing with the case justly meant that it was both proportionate and appropriate for the remedy claim to be struck out.

[Summary reproduced from the judgment]