Keystone Law’s employment partner Sarah Garth successfully represented a leading retailer and a number of its senior executives (the Respondents) who were accused of harassment, discrimination and victimisation by a former employee (the Claimant).

The Employment Appeal Tribunal (EAT) decision considered whether the Employment Tribunal was correct to strike out the Claimant’s claim after a liability judgment, whereby the Claimant destroyed disclosable documents, including a notebook and mobile phone, prior to the Remedies Hearing. These contained entries which referred to her mental health and a covert recording relevant to her victimisation claim against one of the Respondents.

The Employment Tribunal

The Claimant succeeded (in part) on her claims at the liability hearing in 2020. In this case, the Claimant’s schedule of loss stood at over £673,000 and majority of her losses were said to be attributed to her mental health, allegedly caused by the Respondents’ conduct, impacting on her future ability to work.

The Respondents wanted a forensic examination of the notebook to confirm its authenticity and an inspection of the phone. These documents were relevant for the Remedies Hearing given that they could have undermined the Claimant’s case as to the effect the alleged treatment by the Respondents had on her mental health.

The Preliminary Hearing

A Preliminary Hearing was listed on 31 October 2022 to determine the Respondents’ disclosure applications. The day before, the Claimant revealed in a witness statement that she had destroyed the notebook and the phone. The hearing was adjourned and relisted for January 2023 to determine whether the Claimant’s claim should be struck out.

Following the Preliminary Hearing in January 2023, the Tribunal struck out the entirety of the Claimant’s £673,000 claim against the Respondents. This was based on a finding by the Employment Tribunal that the Claimant had chosen to deliberately destroy documents relevant to the Remedies Hearing. EJ Hyams described the Claimant’s justifications for destroying these documents to be “evasive and objectively unjustified” and “nonsensical”. The Employment Tribunal found that a fair hearing of the remedies claims in this case was no longer possible.


The Claimant appealed the decision and the EAT concluded that the ET had been entitled to find that the Claimant had either destroyed the evidence in late October 2022 or was lying about having done so. It found that the ET had been entitled to conclude that the Claimant’s conduct was designed to frustrate the doing of justice and that her conduct meant that a fair trial of the remedy claim was not possible. Given the severity of the Claimant’s conduct, striking out her entire remedy claim was a proportionate and appropriate sanction.

Click here to read the full judgment.

Sarah Garth, the Respondents’ solicitor, said:

“We are delighted with this result for our clients. It has been a long and difficult case but we are very pleased that the EAT came to the right conclusion.”

Sarah Garth worked with Suzanne McKie KC and Lucas Nacif at Farore Law for the Respondents.

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