Ms R Kaur v Sun Mark Ltd and others: 3334669/2018

EMPLOYMENT TRIBUNALS

Case No 3334669/2018

Between

Ms R KaurClaimant

Sun Mark Ltd and othersRespondent

Before

Employment Judge Smail

Ms S Aly (instructed by Counsel) for claimant

Date 3 February 2023

JUDGMENT

The Claimant has waived her right to anonymity in respect of this matter on 10 March 2021 in proceedings before the Employment Appeal Tribunal

[1]Mr Sharma, contrary to section 26(1) and or section 26(3) of the Equality Act 2010 subjected the Claimant to unwanted sexual attention, which had the effect of creating an offensive environment for her. This took the form of repeated requests for a sexual relationship from early July 2018 until the end of September 2018.

[2]The Claimant does not establish that Mr Sharma threatened her job or immigration status if she declined to sleep with him. She does not establish that he threatened to rape her or that he assaulted her.

[3]Mr Ahuja did victimise the Claimant contrary to section 27(1) of the Equality Act 2010 when on 1 October 2018 he sought to dissuade her from pursuing a complaint of sexual harassment, a protected act, by asking her to consider the implications for her job, visa and honour. This amounted to a detriment.

[4]Lord Ranger did victimise the Claimant contrary to section 27(1) of the Equality Act 2010, harass her contrary to section 26(1) of the Act, and directly discriminate against her contrary to section 13(1) of the Act when, in an intemperate telephone call on 5 October 2018, the Claimant having informed him she was raising allegations of sexual harassment, he stated –(a) he would not ‘spare her’;

(b) he would get the evidence together and see her in Court;

(d) she had no virtues and compared her to a female member of a nonelite peasant caste;

(e) she was silly and stupid;

(f) she was a liar;

(g) she was an absolute troublemaker;

(h) she was a horrible girl;

(i) she had ruined her parents’ honour.

[5]The remainder of the Claimant’s claims are dismissed. There is no additional liability on the part of Mr Sharma, Mr Ahuja or Lord Ranger. There is no liability on the part of Mr Gidar, Mr Qazi, Lady Ranger or SARR Management Ltd.

[6]Sun Mark Ltd and Sea Air and Land Forwarding Ltd are jointly and severally vicariously liable for the liability of Mr Sharma and Mr Ahuja found above.

REASONS

[1]INTRODUCTION1.1 By a claim form presented on 8 November 2018 the Claimant claims direct discrimination because of her sex; harassment related to her sex; sexual harassment; and victimisation. All claims are brought under the Equality Act 2010.

1.2 The specific allegations are set out in a detailed Scott Schedule, which is annexed hereto.

[2]THE PARTIES2.1 The Claimant was, and remains, an accounts manager employed by Sea Air and Land Forwarding Ltd (SALF). She started on 2 January 2018. She was seconded very early on to SARR Management Ltd (SARR) based in the Greenford office. She was then moved to the Holiday Inn in Watford. She returned to Greenford in April 2018. Her work was to be transferred to SALF towards the end of September 2018. In the event, she was signed off sick on 3 October 2018 and has not returned to work since.

2.2 The Greenford offices, as we understand it, are used to administer Sun Mark Ltd, SALF and SARR.

2.3 Sun Mark Ltd is an export company of fast moving consumer goods, in particular food and drink worldwide. It is owned by Lord Ranger, SALF and Lady Ranger. Lord Ranger and Mr Gidar are investors in SARR, which is a hotel management company. Lord Ranger was not an employee of any of the corporate Respondents but is chairman and co-owner of Sun Mark. He is regarded as the overall boss of Sun Mark and SALF. He has an interest in SARR only as an investor.

2.4 Mr Ahuja (whom we will refer to as Sunny as everyone else does) was director and group CEO of Sun Mark and SALF. He is also a director of SARR. He is Lord and Lady Ranger’s son in law.

2.5 Ravinder Gidar is an investor in - and director of - SARR. His background is ownership of care homes.

2.6 Mr Nayaz Qazi holds himself out as head of legal at Sun Mark and as a special advisor to Lord Ranger. He claims to be a consultant rather than an employee. He undertook an investigation into the Claimant’s claims.

2.7 Lady Ranger is to be regarded as an employee of Sun Mark in that she is head of human resources. Indeed, she tells us she is the only individual carrying out an HR role within the group of companies. She is co-owner of Sun Mark and SALF, and company secretary of both companies.

2.8 Mr Kapil Sharma is head of finance at Sun Mark. Between November 2017 and June 2018, he says, he was temporarily overseeing SARR’s finance function. The Claimant makes allegations of sexual harassment against Mr Sharma.

[3]THE LAW3.1 By s.13(1) of the Equality Act 2010 direct discrimination is defined: “A person A discriminates against another B if because of a protected characteristic A treats B less favourably than A treats or would treat others.” There are no actual comparators in this case. Instead a hypothetical comparator is relied upon on each occasion direct discrimination is alleged.

3.2 Harassment is defined under s.26 of the 2010 Act. By sub-section (1), a person A harasses another B if

(a) A engages in unwanted conduct related to a relevant protected characteristic; and

(b) the conduct has the purpose or effect of (i) violating B’s dignity or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

3.3 By sub-section (2), A also harasses B if (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in sub-section 1(b).

3.4 By sub-section (3), A also harasses B if (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender re-assignment or sex, (b) the conduct has the purpose or effect referred to in sub-section 1(b), and

(c) because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

3.5 By sub-section (4), in deciding whether conduct has the effect referred to in sub-section 1(b), each of the following must be taken into account: (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. Sub-section (5) confirms that sex is a relevant protected characteristic for this cause of action.

3.6 By s.27 victimisation is defined: (1) A person A victimises another person B if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done or may do a protected act.

3.7 By sub-section (2) each of the following is a protected act: (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this act; (c) doing any other thing for the purposes of or in connection with this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this act.

3.8 By sub-section (3) giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

3.9 Sub-section (4) confirms that this section applies only when the person subjected to a detriment is an individual.

3.10 The burden of proof is important in discrimination cases. By s.136(2) if there are facts from which the court could decide in the absence of any other explanation, that a person A contravened the provision concerned, the court must hold that the contravention occurred. However, by sub-section (3) sub-section (2) does not apply if A shows that A did not contravene the provision. What this means in practice is that the Claimant has to show a prima facie case that discrimination has occurred. If that happens, the burden is transferred on to the Respondents to show that discrimination played no role whatsoever. Igen v Wong Court of Appeal

2005 EWCA CIV 142

[4]FINDINGS OF FACT4.1 There are findings throughout this document. The majority of factual ones are set out under this section.

4.2 The Claimant’s witness statement supports the allegations in the Scott Schedule. What then is the corroboration? Meeting with Sunny on 10 September 2018

4.3 The allegations against Mr Sharma start in early July 2018. Sunny accepts that the Claimant came to see him on 10 September 2018. He records the incident as involving the Claimant coming to see him to raise a “small matter”. She sat with him for a few minutes and told him that she thought her friendship with Mr Sharma was being misconstrued by him as something more serious. She said it was unwelcome, but on a minor level. She said in Punjabi that he was interested in her, but she was not interested in him. She seemed embarrassed but did not give Sunny the impression that she felt threatened. Sunny refutes the Claimant’s claims that she approached him in July or August 2018.

4.4 The Claimant claims at paragraph 138 of her witness statement that she approached Sunny in late July and told him about the sexual harassment. She says he said, “Don’t worry, I will talk to him”. She goes on to say that she approached Sunny frequently throughout July and August. Sunny denies that. He does accept the discussion on 10 September, but he asserts she expressly did not want to make a complaint formally. He then arranged for Mr Manning to take over the supervision, which Mr Sharma had been doing up to then informally, as the go to person. Medical records

4.5 There is a visit to the GP on 29 August 2018 where the Claimant records falling at home and sustaining a wound and bruising. There is no reference to any issues at work.

4.6 There is a visit on 10 September 2018, which involved seeing two doctors. She presented with a history of low abdominal pain for which she had called an ambulance the previous night but cancelled it because there was a 2 hour wait.

4.7 In the course of the second appointment that day, which seems to have started with discussion of the abdominal pain, the Claimant stated that she had stress at work, her manager had been asking her to meet outside and threatening her. She was planning to speak to senior managers at work.

4.8 There was a visit on 3 October 2018 when the Claimant reported a 5 day headache. She reported being under a lot of stress at work, being bullied at work, being sexually harassed at work and being threatened with verbal sexual abuse by a colleague. She was prescribed pain relief and advised that she should report the matter to her bosses or the police.

4.9 She was then seen on 9 October 2018 when she said she had reported her work colleagues to the police. She was described to be of low mood and not suicidal.

4.10 On 17 October 2018, in a long consultation, she was described as being of low mood concerning sexual harassment and assault at work. It is recorded that the Claimant informed the doctor that the Claimant did try to start taking sleeping tablets as though in a suicide attempt but stopped and forced herself to vomit. She said she was now hearing his voice and threats and quoted the phrase: “What’s the big issue over a few drops of liquid to come out” A reference to ejaculation. She had been called a prostitute by the boss, she reported. The doctor suggested the possibility of posttraumatic stress disorder.

4.11 On 30 October 2018 she attended by way of a follow-up. There was on-going stress and anxiety related to her ex-boss making sexual remarks and threats. It was recorded that she has had suicidal thoughts but would not act on those.

4.12 There followed repeated appointments in which the Claimant gives information consistent with her case. Mr Sharma’s phone records

4.13 These list calls to the Claimant. We have these between April and September 2018.

4.14 It is significant that Mr Sharma called the Claimant outside working hours as follows: Date Time Duration 23 July 19:02 20 minutes 51 seconds 23 July 19:31 6 minutes 39 seconds 25 July 18:20 33 seconds 25 July 19:02 9 minutes 30 seconds 25 July 20:05 3 seconds 25 July 20:08 3 seconds 3 August 18:31 31 seconds 6 August 18:10 3 seconds 6 August 18:11 4 seconds 6 August 18:12 3 seconds 7 August 12:07 9 minutes 22 seconds 7 August 18:18 3 minutes 9 seconds 10 August 18:39 8 minutes 33 seconds 10 August 18:55 13 seconds 15 August 18:27 22 minutes 38 seconds 15 August 18:52 3 seconds 16 August 18:17 1 minute 40 seconds 7 September 18:33 3 seconds 7 September 18:38 16 minutes 43 seconds 10 September 18:16 6 seconds 10 September 18:18 3 seconds

4.15 Mr Sharma gave no details about any of these conversations or attempted conversations either in his witness statement or in his evidence in the Tribunal. His cross-examination position was that he could not now remember what they involved; they would have been about work. Report to Gauri Narang

4.16 On 29 September 2018 the Claimant spoke to Gauri Narang, who was a consultant with SARR in a management position, about her alleged problems with Mr Sharma. That caused Ms Narang to email Sunny, copying in Mr Gidar. She wrote that she wanted to bring to their notice that the Claimant had been experiencing sexual harassment from Mr Sharma for the last three months. Last Friday, she reported the allegation, Mr Sharma had blocked her way in the staircase and did not allow her to leave the building. She had threatened him several times that she would go to the police if he did not stop. The situation had become unbearable and had led her to take legal advice from a solicitor.

4.17 According to her, Mr Sharma had been making sexual advances towards her at the workplace for at least three months and using work as an excuse to come down to her office and spend all day sitting next to her. When she tried to stop him and rebuked him several times, and told him not to enter into her office, he had been claiming that he is a SARR management manager and has all the rights to be in her office. Her job and salary review were dependent on his decision, he stated. His wife was fully aware of the whole situation, apparently.

4.18 The Claimant had been under a lot of stress because her visa relied on her position at SALF, continued Ms Narang, and if she reported against him, she was concerned she would end up losing her visa. She had been keeping quiet about the whole situation. If she complains her concern was that he would report her to UKBA about her visa status. She was in debt because of her father’s heart problem. She had apparently lent her passport to a friend of Mr Sharma for £1,000. She claimed that she had already spoken to her peers about complaining about Mr Sharma to higher authority. She was warned that a similar incident happened in Sun Mark before and the girl was asked to leave instead of the guy.

4.19 Further to Friday’s incident on 28 September she had been to see a solicitor and was considering going to court against Mr Sharma. The solicitor had advised her to speak to her manager.

4.20 Ms Narang advised her that it was best to speak to the directors. She had mentioned that she had reported Mr Sharma’s behaviour to Sunny a few weeks before. Mr Sharma was asked not to interfere in her work as Richard Manning was working for SARR. She claims that he had been more aggressive in his approach and was finding every reason to humiliate or insult her in front of others and threatening her that she will lose her job if she does not do what he is asking her to do. He kept mentioning to her, it was alleged, that he had enough power in Sun Mark to fire people. She was concerned that she would end up losing her job. She had been feeling suicidal because of the on-going harassment at work. She did not feel safe in the office environment and wants to move away from the building in which Mr Sharma worked.

4.21 Ms Narang went on to describe operational difficulties at SAAR. She concluded that if they did not control the Claimant’s situation, knowing how unpredictable she is, going through emotional mental stress; the Claimant flared up easily. If the situation became sour, it would impact on SARR’s management stability to the core

4.22 Sunny confirmed receipt of the email. He would speak to the Claimant himself to understand this fully the following day.

4.23 He recorded that the Claimant had spoken to him once before, but it was not stated as Ms Narang had described it.

4.24 Ms Narang had a telephone discussion with Sunny following this email. She told us in evidence that she had been told by Sunny that Lord Ranger was unhappy that he had not been approached on the matter.

4.25 Ms Narang emailed on 1 October at 13:33. Ms Narang appears to backpedal somewhat in this email. She says that she had already made it clear to the Claimant that Sunny had been informed and was looking into the case in the morning. She did not need to go to anyone else but was to have patience. Ms Narang said that her involvement was not required anymore when the directors were looking into it. If she intends to go for legal help after the meeting with Sunny on the 1st, Ms Narang said she would not pick up her calls and would maintain distance because - “I don’t support behaviour like this. Please treat this email as confidential. I don’t have any intentions to get involved. I would like this situation to be resolved without having any serious implication for SARR and Sun Mark”.

4.26 As we say, Ms Narang had been told that Lord Ranger was unhappy about this matter developing without reference to him. Meeting with Sunny on 1 October 2018

4.27 The meeting is not minuted. A meeting did however take place. Sunny’s account is in his witness statement. He spoke to Lord and Lady Ranger in advance. It was agreed that the Claimant would move office to the interlocking building outside Lord Ranger’s office. This was through a number of sets of doors separating the location where Mr Sharma worked.

4.28 Sunny tells us that the Claimant alleged she had been sexually harassed by Mr Sharma for three to four months but said that she was not sure that she wanted to file a complaint.

4.29 When asked, according to Sunny, why she had not made these allegations earlier, she said, according to him, that she did not know how to raise the matter. His stance in his witness statement was that whether or not she wanted to file a complaint, the matter would be investigated.

4.30 There is a significant contrast in this position compared to an email written by the Claimant on 4 October 2018. It is right that she clearly had legal support at this stage and she writes in the email of 4 October 2018 at 14:43: “When we met on Monday you told me that if I pursued this matter maybe I would lose my job, visa and honour. I told you that the situation was intolerable and having a negative effect on my health and work”.

4.31 That contention was not answered by Sunny in writing at the time. He did not email back, for example, saying ‘what on earth are you talking about. I never said such a thing.’ He did decide to not involve himself in the investigation which Mr Qazi undertook. The termination of the SARR secondment on 15 September 2018 as victimisation?

4.32 The decision to terminate her secondment with SARR, pushed for by Mr Gidar, was taken in ignorance of her claims of discrimination. Mr Gidar did not know about her claims and so this decision cannot be said to be an actionable detriment or act of discrimination or harassment. Similarly, Sunny did not have the amount of knowledge, at this point, as he did on 29-30 September 2018.

4.33 Whilst the decision had been taken in that way, there was an intention to hold a two-week handover. It seems that the Claimant was not told of the decision to transfer her from SARR until after the events of early October 2018 and her repositioning in the office; by which time, of course, she had been signed off. The email trail however is an accurate record of the decisions taken by management in terms of terminating the secondment and the reasons for that decision.

4.34 It seems that the Claimant’s email access to the SARR email account was blocked on 5 October 2018. That seems consistent with the decision to terminate her secondment. There is not a prima facie case of discrimination in respect of this. It is explained. It is further explained that she would be given access to the SALF email account when she returned to the office. The Tribunal does not see a prima facie case of discrimination in any of that. The telephone conversation with Lord Ranger on 5 October 2018

4.35 We have listened to the tone of this conversation on several occasions, reading at the same time the jointly instructed translator’s translation. The Claimant started to record her conversation with Lord Ranger some minutes into the conversation. She recorded it on a second mobile phone, we understand. No point has been taken about admissibility. The Claimant was speaking in a very fast and loud fashion. Lord Ranger is plainly angered by what she is saying. They speak over one another. Bits of the translation were put to Lord Ranger. Where he disagreed with the translation, he gave his version. Lord Ranger says at five seconds into the recording: “Listen, there is no point in trying to act too smart… I won’t spare you… because don’t you ever think that you are the only one who is capable of defaming someone.” The Claimant says: “This is very wrong sir… that man had blocked my way sir that man started saying insulting things against my honour. He grabbed my hand.” Lord Ranger says: “Tell me something you are such an intelligent girl why then didn’t you write to me. You approach me right at the end.” Lord Ranger says at 32 seconds: “I do not want to talk to you any further I will meet you in court.” He goes on at 35 seconds: “I want to meet you in court. I will tell them exactly what your capabilities are.” He says he has Gauri as a witness by which we understand a witness as to her capabilities. The Claimant replies that Gauri herself had sent an email to him. “I had told Gauri” she says, “that this man is ruining my life… he touches me here and there here on different parts of the body.” Lord Ranger replies at 48 seconds: “Stop your nonsense stop talking rubbish don’t talk nonsense fear God!” He continues at 50 seconds: “So you have spread your vulgarity” at 52 seconds: “One vulgar thing has spread her vulgarity all around.” At 54 seconds the Claimant says: “You also have daughters in your family too. He would molest someone else’s daughter tomorrow”. At 59 seconds Lord Ranger says: “Hey stop talking rubbish”. The Claimant says: “Like he had molested me today”.

4.36 At 1 minute and 2 seconds Lord Ranger says: “Stop your rubbish. You have created such a mess in the entire company.” The Claimant replies: “So it’s not me who has created this mess. His behaviour had pushed me to the limit that I even attempted suicide. I did say to him you don’t harass me right”. Lord Ranger says: “You suicide. Listen if you suicide listen listen.”

4.37 At 1 minute 11 the Claimant says: “I had asked him so many times not to harass me. He had blocked my way so many times sir.”

4.38 At 1 minute 13 Lord Ranger refers to the CCTV that we have seen. He says he had watched her arguing with men in such an insolent way. “You are arguing with men like a proper quarrelsome woman.”

4.39 At 1 minute 22 the Claimant says: “That man was calling me a slut. He was calling me a prostitute and you expect me to take that all in from that man.”

4.40 Lord Ranger replies at 1 minute 28: “You have no virtues whatsoever. You are a policewoman and coming over from Punjab you are behaving exactly like Jatts do with men.” We note that the translator describes a Jatt as non-elite peasant class of the Punjab.

4.41 At 1 minute 34 the Claimant says: “Sir you shouldn’t be saying wrong things against me. You should be asking to that man too. No woman could be safe over there.”

4.42 Lord Ranger replies: “If you are use a little bit of sense you should’ve approached me earlier. You are calling me today. You should have called me before on the day that it happened to you.”

4.43 At 1 minute 45 the Claimant says: “I have been approaching Sunny sir every day and he himself had told me you mustn’t go to Rami sir” (i.e. Lord Ranger)

4.44 Lord Ranger says at 1 minute 49: “If a man was harassing you, you should have told me on the same very day.” She replies: “I did approach Sunny sir every day and told him that this man has been harassing me.”

4.45 Lord Ranger replies at 1 minute 56: “How much more are you going to lie?” She says at 1 minute 57: “He is making threats to me, he has been threatening me and saying that he will get me sacked from the company.”

4.46 Lord Ranger says at 2 minutes: “From now onwards for the rest of your life you will be lying.” At 2 minutes 6 Lord Ranger says: “You are a big time lying woman”.

4.47 At 2 minutes 10 making reference to the fact that he had taken the Claimant on Lord Ranger said: “I tell you what I have made a mistake by doing a good deed but from now onwards I will never help anyone.”

4.48 At 2 minutes 16 the Claimant suggests that if he were to appoint a woman her vulnerability would be taken advantage of. She would be harassed and bad things would be said against her honour.

4.49 At 2 minutes 21 Lord Ranger asks: “What is your helplessness?” He describes her as a silly girl. He specifically created a job for her. He describes her as an insolent girl at 2 minutes and 33 seconds.

4.50 At 2 minutes 35: “You are such an insolent girl I am going to take you to court you wait and see.” At 2 minutes 36 the Claimant says: “Yes sir you drag me to court. I really want you to drag me to court and take this man to court as well.”

4.51 At 2 minutes 41 Lord Ranger says: “Insolent woman get lost you stupid girl I do not want to talk to you. You are such a horrible girl.” At 2 minutes 42 the Claimant says: “Take this man to court as well.”

4.52 At 2 minutes 47 Lord Ranger describes her in the translator’s words as an absolute scumbag or absolute garbage. Lord Ranger contests that translation. ‘Insolent girl’ is the translation that he prefers.

4.53 At 2 minutes 50 he says: “Absolute troublemaker” or words to that effect. At 2 minutes 52 she says: “Sir he had said to me that: “I’ll get you sacked from the company”. He harassed me by surrounding/blocking my way in the street.”

4.54 At 2 minutes 58 Lord Ranger says: “Listen I had mercy on you in the name of God because you were begging me but what a scumbag (insolent girl) you have turned out to be.” At 3 minutes 6 he says that she has ruined her parents’ honour.

4.55 At 3 minutes 8 the Claimant retorts that “He is the one who is determined to ruin parents’ honour”. At 3 minutes 9 he tells the Claimant to “Shut up you bloody fool. Get lost and don’t call me again. I want to see you in court.”

4.56 At 3 minutes 14 the Claimant says: “Don’t you employ any girls anymore because this man will molest their honour too”. Lord Ranger replies at 3 minutes 20: “There are a lot of other girls working for me over there you stupid girl. Gauri is working there.”

4.57 At 3 minutes 26 the Claimant says: “Don’t take advantage of any girl’s vulnerability.” At 3 minutes 27 Lord Ranger says: “Gauri told me that you are a rude girl. You are insolent. You have no sense.”

4.58 At 3 minutes 35 he says: “You don’t know how to talk to people.” At 3 minutes 40 he says: “I will produce all the evidence and witnesses in court.” At 3 minutes 43 the Claimant says: “Yes of course sir you can create a witness because you have the power to do so.”

4.59 At 3 minutes 49 he says: “Shut up you stupid girl carrying on talking rubbish.”

4.60 We have taken some of the alternatives given by the translator in her translation, ones we think best reflect Lord Ranger’s position, as he tells us he intended it. The personal notebook

4.61 On the first day of her evidence the Claimant was asked whether she kept a diary. No diary had been disclosed. The Claimant responded that she did keep personal notes. That was a matter of surprise to all in the Tribunal because nothing had been disclosed. The Claimant was resistant to the idea that she should produce it because as far as she was concerned it was personal to her and not meant for public consumption. The Tribunal finds as a fact that this was a genuine position on her part. She had no intention of producing what was in the notebook to anyone. Nonetheless, we ordered its production. She asked whether she could edit the amount disclosed by taking pages out. We made it clear that this was not possible and on day 2 of her evidence she produced the notebook, which is a 200 page Pukka Jotter Pad. Not all 200 pages remain but there were a number of pages written in Punjabi in different coloured inks suggesting they were written at different times containing material relevant to the allegations the Claimant makes.

4.62 As far as we can tell, the entries were not in chronological order. Some of the entries were irrelevant being shopping lists and the like but otherwise there was relevant material in it. We do not know precisely when the entries were made. It is not a diary, it is a notebook with observations made in it, but we are clear on the balance of probability that this document was not manipulated by the Claimant for the purposes of these Tribunal proceedings. It amounts to a genuine notebook in which she has recorded her thoughts. To that extent there is some evidential value in what she has said. Some of the entries are addressed to the Claimant’s mother, not perhaps with the intention her mother reading them but in terms of the mode of dialogue adopted by the Claimant. Some passages are consistent with the Claimant’s evidence that she considered suicide. The entries are frequently poetic in quality. So, for example, at page 9 of the translation we have the following: “Mummy, he told me today that I will die if you do not go to the hotel. Mummy, I feel like crying a lot. What can I say on the phone? Mummy, God is also not removing him. He says that my breasts are very beautiful. He held my breast tightly. He says that my body is very beautiful. I wish to cut off my hand and breasts and throw those somewhere. I feel hatred of my body. Mummy, he says to wear Indian dresses, take scarf and keep my breasts out all the time. You lie like a fish and you are fish. Mummy, no-one has ever made me so mad with such a strength. His boss is just like him. He says that my eyes are brown, also look around. Evil eyes are everywhere. I wish to die. Mummy, he is making me mad by saying such dirty things. My brain has blown. I may die by hitting the wall. Tell me? What to do? Where is that God, tell me where is he? He has thrown me on earth with these dirty people. Take me God, take me today, he has made the body given by you a piece of shit. By touching. The breasts which represent the motherly nature and make women beautiful, he has made them filthy by touching them with dirty hands. Oh God, oh God, I am destroyed. My figure, figure, figure, I only heard this from him. Raman is dead, I am destroyed ha ha ha ha laugh Kapil again laugh laugh laugh, how you laughed.”

4.63 It is not readily apparent from each entry to decide when it was written. Some of the entries could have been made sometime after the events described.

4.64 At page 7 of the translation we have the following passage: “They made my life hell. I have a headache. I wish I could die. What type of person is he? He made his wife mad. He will also make me mad. He does not care about his children. He is hungry for filth. After seeing him, I think no-one is honest. All men might be like him. But no, my Raj loves me a lot.”

4.65 At page 10: “Am I Sali? Yes he is saying to me. Kapil laugh laugh again, like every day you laugh on my compulsion.”

4.66 Page 12 of the translation is headed My Life “What to write = shit that Kapil says to me daily. What to do = dirty sex, that’s what he says? But why? Why? I am not a bad girl, I belong to a good family. Die = yes Raman, it is a very good way to leave daily abuse, but then, what will my parents do?”

4.67 There follow several references to death. At page 14 there is a suicide set of verses but as we know the Claimant did not pursue this, except by taking no more than four, as she told the doctors, sleeping pills. It appears that this suicide verse was written on 22 September 2018.

4.68 The Tribunal concludes that these verses provide some consistency of account on behalf of the Claimant. The Respondents pointed to one verse at page 34 of the translation, which seems to suggest that it was Raj, her fiancé, who told her that her job and visa would be taken. We accept the Claimant’s account that she was addressing Raj in this verse, not purporting to record what he said. The Claimant is clear that Mr Sharma and indeed Mr Ahuja mentioned to her that she could lose her job and visa if she pursued complaints. Police statement 4 October 2018

4.69 The Claimant went to the police on 4 October 2018 and gave a statement signed by her. She gave the background to her appointment. She explained that whenever she spoke to Mr Sharma it would be in Punjabi or Hindi and that in the statement she gave a translated version. She also gave the background to their relationship: that between April and July 2018 they became friends and that Mr Sharma was nice to her. She treated him as a brother and when she got her visa granted, she was thankful for his support. His wife also congratulated her. They exchanged numbers as friends, his wife and her, and one day, claims the Claimant Mr Sharma’s wife called her to say that she was upset, believing he was having an affair and asked if he had tried anything with her. On 28 April 2018 she went for dinner at the Sharma’s house. Everything was nice, she says, and she spent most of the evening with his wife in the kitchen.

4.70 In July 2018 the picture changed, and the Claimant alleges Mr Sharma declared his love for her. This made her think of what his wife had said to her. He would then repeat his affection for her on a regular basis. He would expand on that, she says, and ask for sex. She used to say to him, she says, that she was going to report it to a manager to which Mr Sharma suggested she be fired, would be out of the country and would not get a visa. He would then ask her to attend a hotel. She recites a version of the 7 August incident but she dates it as mid-July 2018. She says she had an appointment with the doctor in the afternoon, that Mr Sharma became unwell and she suggests that Rahul told her to take him to the hospital on the way to the doctor. She agreed eventually. As soon as he was in the car he recovered as if by magic and he asked her to move the car to one side and park it and he started talking about her top and her breasts. He then grabbed her left boob saying: “This ball is very nice”. She says she instantly slapped him across his face and told him to get out of the car. He then started clapping his hands and laughing saying “Why are you making so much drama all I want to do is ejaculate”. She says she turned the car around and started driving back. She says she missed her own doctor’s appointment. She said to him that she would tell a manager to which he replied: “Do you want me to make you handicapped?” In the ensuing period he would come up to her every day asking for sex. She claims he said that he had so much power in the company that he could make her leave if he wanted to. He would make her handicapped. This happened every two to three days.

4.71 She says that on 10 September she told her manager, Sunny, everything that was happening and her manager responded by saying they would be separated for a week or so afterwards. She heard nothing from Mr Sharma. That changed. In the course of this period she made two suicide attempts by taking three or four tablets but not pursuing it because she did not want her family to suffer. She then describes the alleged incidents of Friday 28 September. She mentions a disagreement about an email. She says she was cleaning her desk getting ready to leave when Mr Sharma came over to her and asked why was she being such a whore. To which she said: “Mind your language”, asked him to leave the office to which Mr Sharma was persistent asking her to give him a few minutes and blocked her exit and asked her to stop making dramas saying he was going to feel her and have sex with her. He said: “I will cut your arm off, I will cut your leg off then you’ll learn your lesson. When you lose your job you will learn”.

4.72 On Sunday 30 September she says she called Sunny and told him what had happened. She emailed her manager also about what had happened. There was a meeting on 1 October 2018. She claims that Sunny said to her “If you report the matter to the police, what about your job, what about your visa?” This is why she was scared she would lose her job. She was then moved to a different department in a different building and by 5pm that same day she was moved. She said she did not feel safe to return to work.

4.73 The Tribunal has noted a few inconsistencies in the account. First, is the misdating of the 7 August incident as mid-July. We note that the Claimant had claimed she had informed Sunny earlier than 10 September in her witness statement for the Tribunal but that is not included in the police statement. She also claims to have told him the whole story on 10 September whereas he claims he had only a description of Mr Sharma liking the Claimant more than she liked him. We note the use of the word “whore” in the statement whereas some Respondents witnesses, including Mr Sharma, remember us hearing the word ‘hoor pari’, which is a Punjabi word for prima donna. She does not mention in this account Mr Sharma touching his penis over his trousers as a threat of rape. Those observations aside, she does make complaint in this police statement of many of the matters she raises before us. The CCTV of 28 September 2018

4.74 We have carefully watched the CCTV on a number of occasions. It is agreed that the beginning of the argument that ensued between Mr Sharma and the Claimant was to do with the fact that the Claimant had copied Sunny into an email in which Mr Sharma had mistakenly put a wrong attachment to an email giving the appearance that he was seeking permission to pay a member of staff’s private utility bill. Mr Sharma was offended that the Claimant had copied Sunny into this email making him look incompetent. He challenged the Claimant on the matter. He entered her office and spoke to her in a way that looks confrontational. The Claimant purported to switch off the office light and sought to exit her office. Mr Sharma was physically in the way and they have what looks to be a heated disagreement, which extends over a period. There is a 52 second missing piece of coverage. Mr Sharma has his back to the camera. He is the other side of two glass doors. Even if he touched his penis with one of his hands this would not immediately be apparent on the CCTV angle. The Claimant’s behaviour after the 52 seconds does not seem immediately consistent with her having been threatened with violence or rape. The Claimant looks as though she is holding her own in this argument. That said, it does not look like Mr Sharma is behaving professionally in challenging the Claimant in this manner. The Claimant clearly did not like what Mr Sharma had to say and she responded. There was a degree of familiarity, at least in appearance, from both their postures. The CCTV would corroborate an assertion that Mr Sharma was angry with her. It does no more than that. The Claimant’s posture involves folded arms and an uncompromising retort.

4.75 We have carefully looked at extracts. It has been said to us that after a certain period during the day including this period the CCTV is motion triggered. It does not run constantly. It is triggered only if there is movement. There are 52 seconds of coverage missing. The Claimant says there would have been movement during this period and the Respondents have deleted a period of cover. The Respondents deny that. They say they have invited the Claimant’s solicitor to examine the hard-drive to see if he could find any modifications, and the solicitor had not taken this offer up. The CCTV does not include audio, but we can see the demeanour of the protagonists to a degree. Inconsistencies in the Claimant’s account

4.76 Whilst the above matters provide a degree of corroboration for the Claimant’s account much of it is corroboration generated from the Claimant’s own words. There is corroboration in the record of phone calls made by Mr Sharma to the Claimant, which phone calls Mr Sharma has not clarified with the Tribunal in terms of their content. The Tribunal notes that 2018 is not actually that long ago. The Tribunal further notes that Mr Sharma will have been aware from October 2018 that there were allegations of harassment applying against him and he will have had plenty of opportunity to prepare an account of what happened. It is significant, in the Tribunal’s view, that Mr Sharma has not said that there was any sort of consensual romance between him and the Claimant. The Tribunal itself raised that as a possibility for the evidence to address. There was no suggestion from Mr Sharma or on his behalf that the Claimant engaged in any romance or any sexual activity with him consensually. That opportunity was not taken by Mr Sharma. 7 August 2018

4.77 We were persuaded by the evidence of Ragini Khullar and Rahul Makwana that on 7 August 2018 in the early afternoon, at about half past 1, the Claimant insisted on taking Mr Sharma to hospital. She was not persuaded reluctantly. She herself insisted on taking him. We note that the Claimant received a phone call from Mr Sharma at 12:07 that day and spoke to him for 9 minutes and 22 seconds. We note further that whilst the Claimant says that she had a blood test appointment, there is no corroboration for this in the medical records. We note further that she returned to work after abandoning the trip to take Mr Sharma to hospital without complaint, bearing in mind that she says she was sexually assaulted by him touching her left breast (according to the police report). Those matters concern the Tribunal. 28 September 2018

4.78 We are also concerned about the Claimant’s suggestions as to what was done and said to her during the missing 52 seconds. We reject the suggestion that Mr Sharma touched his penis and threatened to rape her, as she asserted orally in evidence to us; her reactions are not consistent with something as serious as that happening. Admittedly, even if there had been a deletion of a 52 second recording, we would not have seen from the position Mr Sharma was standing in, that is to say with his back to the CCTV, any such behaviour from him. What we do see is her response to his behaviour and it is inconsistent with just having been threatened in that way. That said, Mr Sharma is behaving in a way suggestive of managerial harassment if nothing else, a matter Mr Makwana himself commented to Mr Sharma at the end of the episode. Mr Makwana told Mr Sharma that it was unbecoming, in effect, to hear raised voices between him and the Claimant.

4.79 The Tribunal is of the view that the Claimant can significantly exaggerate what she otherwise believes to be true.

4.80 We are also concerned by some of the things the Claimant said to Lord Ranger in their recorded conversation. She did not raise concerns with Sunny on a daily basis. She raised some concern on 10 September. We think it likely that she limited that concern along the lines Sunny suggests of being told that she was concerned that Mr Sharma had feelings for her, which she did not return. She did not mention the matter again further until sharing the matter with Gauri Narang (and the events following that including a phone call to Sunny and a meeting with him.

4.81 The Claimant is not entirely a reliable witness.

4.82 We reject the Claimant’s account that she raised matters with Sunny more frequently than on 10 September and 29-30 September 2018. Was the CCTV tampered with by the Respondents?

4.83 We conclude it was not. Whilst it is surprising that there is a 52 second gap, the Claimant’s solicitor was invited to examine the hard drive. That invitation was not taken up. The before-and-after positions of the Claimant and Mr Sharma show that Mr Sharma was in exactly the same position so he would not have moved so as to trigger the sensor. The Claimant had moved two feet to her right and turned around. The light was switched off on that occasion in her office. We do not find on the balance of probability that she had triggered the CCTV at a point earlier. The investigation

4.84 We understand that the Claimant’s confidence in this investigation will have been significantly undermined by the words of Lord Ranger. Saying he will gather the evidence and see her in court is not a helpful way of introducing an investigation. Was it Mr Qazi’s intention to reject the Claimant’s allegations at all costs?

4.85 In his conclusions Mr Qazi focuses on 2 events: the visit to the hospital, said to be in July, and the incidents of 28 September. CCTV covered the latter, at least to a degree. In respect of July he observed that both the Claimant and Mr Sharma travelled back together to the office later that afternoon in the Claimant’s car. The Claimant did not notify anyone on the day that there had been any difficulty, thereby undermining the reliability of her account.

4.86 As to 28 September. He concluded that the footage that can be seen did not show the Claimant seeming upset or fearful. The CCTV did show an argument without sound. Mr Qazi suggests that the CCTV does not show Mr Sharma blocking her in the room. In his concluding comments, Mr Qazi records that the allegations made by the Claimant are of a serious nature and he tried through repeated interviews with Mr Sharma to delve into facts to see if any inconsistencies appeared but there were no inconsistencies in Mr Sharma’s recollection. Based on his investigation to date, he wrote, he could only conclude on the evidence and witness statements in his possession that he was not able to confirm that any sexual harassment or sexual assault had actually taken place on either of the alleged incidents or over the period of three to four months as mentioned by the Claimant.

4.87 It was clear to the Tribunal that Mr Qazi was not experienced in investigating matters of this sort. Notably, he did not keep a record of questions and answers he put and received from Mr Sharma.

4.88 The Claimant’s responses were noted by Ms Perera, who to the best of her ability took notes of what the Claimant said. Ms Perera told us, however, that she does not understand Punjabi and many of the answers of the Claimant were given in Punjabi. She was only able to note what was said in English. No similar notes were taken of interviews with Mr Sharma. Instead of noting questions and answers, Mr Qazi asked for statements from each of the Respondents’ witnesses, including Mr Sharma, having had an initial meeting with them. That process did generate criticism from counsel for the Claimant suggesting that it was designed to prepare the Respondents’ witnesses’ answers to the Claimant’s allegations. Mr Qazi told us that the Claimant did not also provide a statement to him, which he was waiting for.

4.89 Mr Qazi did not expressly address the question as to whether he should believe the Claimant on the balance of probabilities given the allegations that she made. He was hoping for some kind of neutral third-party resolution to what was otherwise the word of one person against another.

4.90 The experience of the Tribunal was that this was not a sophisticated investigation. It was undermined from the beginning by what Lord Ranger had said to the Claimant. The Tribunal is not surprised that the Claimant did not engage with the process more than she did by reason of what had been said to her. That said, we do not believe that Mr Qazi made it his purpose to reject at all costs her complaints. Whilst criticisms can be made of his investigation, the Tribunal rejects the suggestion that Mr Qazi victimised or discriminated against the Claimant in any way in the manner in which he conducted this investigation.

4.91 The Respondents would have generated more confidence in the Claimant and indeed any third party observers if they had appointed an outside body with genuine experience of conducting such investigations rather than appointing the head of legal and trusted advisor to Lord Ranger, bearing in mind the very difficult conversation that Lord Ranger had with the Claimant over the phone. Bearing in mind the resources of the Respondents companies, the Tribunal concludes it would not have been difficult to find a specialist HR consultant to do a full job. That said, we do not find that Mr Qazi is liable under the Equality Act 2010 for the conduct of this investigation. Failure to investigate grievance at any earlier stage?

4.92 The Tribunal does not find there was any obligation on the Respondents to launch an investigation into the Claimant’s grievance prior to her raising matters at the end of September 2018. We reject the suggestion that on 10 September 2018 she disclosed more than that there was an imbalance in feeling between Mr Sharma and herself. Lady Ranger’s letter informing the Claimant that she had appointed Mr Qazi to undertake an investigation was dated 8 October 2018

4.93 The letter records that Sunny had agreed to move the Claimant to another part of the building whilst matters were being investigated. She says she was led to believe that this arrangement worked well for 2 October, after which she describes the Claimant as having absented herself from the 3rd and sent the email on 4 October. She goes on to say that in the circumstances she had appointed Mr Qazi to undertake an investigation. She understood that the Claimant would meet Mr Qazi on 9 October at 2pm. She stated that the Claimant was entitled to bring a colleague to the meeting. Lady Ranger adds this sentence: “No doubt he will want a detailed explanation for your unauthorised absence in the circumstances.”

4.94 The Claimant contends that this is an act of discrimination. It amounts to a detriment for having made a protected act, she claims. There had in fact been an absence certificate but Lady Ranger did not know of it. The criticism from the Claimant is that this was a gratuitous and insensitive comment in the circumstances, displaying an unsympathetic attitude. It is true that the letter reads as though Lady Ranger is a disinterested third party in the matter rather than the head of HR. Does this amount to an actionable detriment? Would a reasonable employee regard that this matter was detrimental in the circumstances? This is borderline. On one view it is insensitive. On another, no other action was taken against the Claimant for unauthorised absence. She had in fact a fit note to the effect that she could not attend. We do not think this at the time caused the Claimant any undue concern. On balance, this was not a detriment. The Claimant does not say in her witness statement that this caused her any distress. She does point out it was based on a false assumption that she did not have a sick note. In the Tribunal’s judgment a reasonable employee would not regard this as being an actionable detriment. The tone of the letter could have been more sympathetic, however. Claimant’s alleged failure to produce her telephone records.

4.95 The Respondents obtained the Claimant’s mobile phone records for September/October 2018 in relation to the phone she says she used generally. She has one other phone, with which she says she speaks solely with her mother in India. We have had no records from that phone. The Respondents make complaint that the Claimant has failed to disclose July and August 2018 records for the phone she received calls on from Mr Sharma. They wanted to know how often she called Mr Sharma. Apparently, the only records we have from Mr Sharma’s phone are the calls made by him. That information has not been disclosed. A third-party order was made against Telefonica in the course of the hearing; they felt unable to assist for technical reasons. It was too late to challenge that. In an apparent attempt to obtain the relevant records, the Claimant had records sent to her for July and August. Unfortunately, it was 2019 not 2018. We do not find that to have been a deliberate ploy by the Claimant.

4.96 There has been to an extent, then, a failure in disclosure. There is mitigation however for the Claimant, which is that it was not until August 2020 that the Respondents pushed this point. In other words, the Respondents left it until effectively the eleventh hour to pursue this matter.

4.97 Although we have concerns about this failure, we are not persuaded that it is deliberate. The Respondents should have been seeking this information long before one month before the hearing. Would the Claimant have been dismissed by the Respondents at the conclusion of her probationary period by reason of performance?

4.98 The Claimant’s probationary period was one year and so would have been up in January 2019. The Respondents in their submissions envisage the possibility of some extension to the probationary period but, nonetheless, submit that we have sufficient information to conclude that the Claimant would have been dismissed for lack of capability at the conclusion of her probationary period.

4.99 The Respondents Sun Mark and SALF have been clear to us in the evidence of Sunny and Lord Ranger that they are not in the business of hiring and firing. They put it forward as a virtue that they are able to find what employees are good at. They were clear that they were not moving the Claimant from SARR because she had made a complaint. Ms McKie’s submissions before us that they would have dismissed her at the conclusion of her probationary period is in contrast to the Respondents’ evidential position on those matters in the Tribunal. On the one hand, they were seeking to make a virtue of their policy of not firing people but getting the best out of them and giving this as the reason for moving he Claimant from SARR and, on the other, Counsel is inviting us to conclude that the Claimant would have been dismissed at the conclusion of her probationary period.

4.100 There were performance concerns and these were listed in an email from Gauri Narang, dated 14 September 2018. Ms Narang emailed Ravi Gidar, copying Sunny. They had discussed the Claimant that day and Ms Narang wrote that there had been occasions in the past where the Claimant had shown carelessness, lack of attention to detail, and absent-mindedness while making payments. There was no sign of improvements. Now it had started to affect Richard Manning’s work. Nine matters were mentioned.4.100.1 The Claimant was requested to refund money to a guest. However, she refunded the money to a sales manager because the sales manager requested her to pay it.

4.100.2 She had made duplicated payments to suppliers.

4.100.3 She had paid the wrong supplier and it had taken five weeks to get the money back.

4.100.4 She had posted invoices to the wrong hotel.

4.100.5 £3,000 had been paid to a wrong supplier.

4.100.6 VAT had not been claimed on £100,000 worth of invoices.

4.100.7 She was not in the habit of sending remittances as she should. An example was given.

4.100.8 She had mishandled the posting of an entry relating to a chair. And

4.100.9 She demonstrated a lack of understanding about when invoices needed paying and asked questions of Ms Narang to which she should have known the answer.

4.101 Other concerns were mentioned in respect of whether the Claimant could cope with the administration of payments for three hotels. They were proposing to take on two more hotels and Ms Narang was uncertain whether they could handle the amount of work given the Claimant struggling with her existing workload.

4.102 Mr Gidar in answer to Ms Narang’s email forwarded it on to Lord Ranger stating that the Claimant could no longer work for SARR. He suggested that they terminate her engagement after two weeks handover. The word Mr Gidar used was “terminate”.

4.103 On 15 September 2018, Lord Ranger instructed Sunny to transfer the Claimant immediately to SALF so that she could start doing export documentations.

4.104 We know that Lord Ranger had appointed the Claimant having been introduced to her by a trusted friend in the community. He told us that he would do everything to get the best out of those he recruited. We accept that.

4.105 We see from WhatsApp conversations between Ms Narang and the Claimant that Ms Narang was comfortable to make comments to the Claimant criticising the performance of Richard Manning and the new girl Renu. We see that on 14 November 2018 Ms Narang asked the Claimant “When will you be back?” She says: “I told Sunny yesterday that Raman was really good in managing cashflow. It was getting too much here. We have this new girl Renu here. She does not know what she is doing. Richard is impossible SARR has become a headache for me.”

4.106 That passage undoubtedly contradicts the suggestion that the Claimant was incompetent in all respects.

4.107 In some ways this is an artificial exercise because we have to put it in the context of all that was happening. That said, we note the Respondents did not dismiss her at the conclusion of her time with SARR. On the contrary, they transferred her to SALF to do export documentations. We do not know how that job would have gone. We cannot say that on the balance of probability the Claimant would have been dismissed at the conclusion of her probationary period for performance reasons. Likewise, we are in no position to say that the Claimant would have stayed long-term. As part of remedy considerations, the Tribunal will have to do the best it can in assessing on-going losses. We reserve that to the remedy hearing.

[5]CONCLUSIONS5.1 Neither the Claimant nor Mr Sharma told the whole truth in this case. That handicaps the Tribunal from making findings that would, for example, satisfy a criminal standard of proof. However, we are able to make findings, we believe, on the balance of probability. We reject Mr Sharma’s evidence that he is not able to recall the content of the phone calls. 2018 was not that long ago. He knew as from October 2018 that he was being accused of sexual harassment. He had ample opportunity to consider the nature of his communications with the Claimant and their content. We reject his evidence that the conversations we have listed above were wholly about work. That is not likely in respect of 23 July, 25 July, 7 August, 10 August, 15 August and 7 September entries. Those timings are consistent with the Claimant’s case that he was seeking an amorous sexual relationship with her.

5.2 The Claimant exaggerates considerably, in our judgment, what happened. She seeks to put a far more sinister interpretation on what happened, which is not credible. It is not credible because if the allegations happened as she said, she would have raised the problem much earlier than she did.

5.3 If there was no amorous pursuit on the part of Mr Sharma that would mean the Claimant has invented the entire story from start to finish. We do not think that is likely, either. That is implausible. She has however exaggerated matters considerably - exaggerated and distorted matters. That may be because she felt vulnerable as an Indian person being in this country on a visa only, hoping, eventually, to receive indefinite leave to remain. That may well have been an element to her exaggerations. We find the following proved on the balance of probability. Protected act

5.4 The Claimant clearly made several purported protected acts. She raised her allegations with Gauri Narang and repeated them to Sunny on 30 September 2018. She was plainly raising allegations under the Equality Act 2010. Were they made in good faith? The Respondents submit not. We have found a mixed picture in respect of this. We have found that the Claimant made a series of accurate allegations against Mr Sharma relating to his persistent sexual interest in her. We have also found that she exaggerated them by including references to physical threats of harm and threats to her visa and job status. We do not find, on the balance of probability, that she maliciously made these allegations. The Claimant’s statements were made in an emotional state including some fact, some distortion and some exaggeration.

5.5 The picture is a mixed one, which makes it not entirely clear to the Tribunal as to where good and bad faith lie. There is, however, sufficient truth and sufficient belief in truth for these matters to amount to protected acts in the Tribunal’s judgment. The Tribunal has found that many of her allegations are not sufficiently cogent in terms of supporting evidence to give rise to a prima facie case. It is clear to the Tribunal, however, that the Claimant believes what she asserts. Our difficulty is that some of the allegations were not sufficiently cogent and supported by evidence for us to find, on the balance of probability, that they happened.

5.6 The fact that the Tribunal finds some of her allegations unproven and rejects them does not mean to say she made them in bad faith. It seems to us she believes all of her allegations.

5.7 We cross-refer to the numbered allegations in the Scott Schedule.

5.8 We find, on the balance of probably, that at some point in July 2018 Mr Sharma did declare his love for the Claimant and indicated he wanted a sexual relationship with her. We reject that he threatened her with dismissal and acting in such a way as to remove her visa. The evidence is not sufficiently cogent about that. The Claimant does not go so far as to say that in her confiding in Gauri Narang. She did not raise this on 10 September with Sunny. She would have done if this behaviour had happened. We do accept that she told him that she did not want a sexual relationship with and his persistence was unwanted.

5.9 We accept that Mr Sharma did pursue her persistently for a sexual relationship. This was unwanted by her. We reject on the balance of probability that he threatened her with the loss of her visa. The evidence is not sufficiently consistent to support that.

5.10 We accept that Mr Sharma in August 2018 approached the Claimant maintaining his infatuation with her and persisted in seeking a sexual relationship. This was unwanted. Allegations 5, 6 and 7

5.11 We think it likely that Mr Sharma invited the Claimant to a hotel room as alleged.

5.12 We think it likely also that on 7 August Mr Sharma expressed in dramatic terms his desire to have a sexual relationship with the Claimant saying that if she would not listen to him, he would die.

5.13 We accept that Mr Sharma felt unwell that day, he spoke to the Claimant that lunchtime. The Claimant volunteered to take him to hospital and, indeed insisted upon doing so. We think it likely that in the car he repeated his affection for her and his desire to pursue a sexual relationship. We think it likely also that the Claimant shared some personal matters with him. We find it likely that Mr Sharma complimented the Claimant’s figure. The evidence is not sufficiently cogent for us to find that he assaulted her. We bear in mind that she came back to work with him and made no mention of any assault. She made no mention of any assault to Sunny on 10 September 2018.

5.14 In our judgment, the analysis is consistent with a man pursuing a woman for relationship and sex. We do not find the evidence sufficiently cogent to find abuse over and above that. That said, we accept from the Claimant, she did not want it. That is precisely what she said to Sunny on 10 September 2018.

5.15 We reject the Claimant’s assertion that he threatened her by suggesting he would break her arms and legs and reduce her to beggar status. The evidence is not sufficiently cogent for us to find that, even on the balance of probability.

5.16 Put another way, we do not find that the evidence is sufficient to amount to any criminal-like conduct on the part of Mr Sharma. He was however pursuing her for a relationship, which she did not want and that amounts to unwanted harassment in breach of the civil law.

5.17 Allegation 9 also is made out and is consistent with our findings on the balance of probability.

5.18 We do not find allegation 8 proved on the balance of probability. Whilst the matter of two female colleagues having been sacked in the past for alleging sexual harassment was floated by the Claimant and her counsel, there was no corroboration for those assertions whether through disclosure or admission by the Respondents. There has been complete denial that anything like this has ever happened in the past. We have no basis to find otherwise.

5.19 The evidence is insufficiently cogent for us to find that the Claimant proves, on the balance of probability, that Mr Sharma called her a bitch and made an insulting comment by reference to dogs. It might have happened but we do not find so on the balance of probability, given the lack of cogency about it in this case.

5.20 We accept from the Claimant that Mr Sharma was still pursuing her for sex. The evidence is not sufficiently cogent for us to find that he threatened her with her visa and her job. Allegations 11 and 12

5.21 We reject the Claimant’s suggestion that he called her a prostitute. We find he used the words “hoor pari” which is a Punjabi word for ‘heavenly princess’ or ‘prima donna’. It does not mean prostitute. We have seen the CCTV: we do find on the balance of probability that Mr Sharma acted in a managerially harassing way in expressing his annoyance at the fact that the Claimant had copied in Sunny to an error made by Mr Sharma. We reject, on the balance of probability, that there was sexual harassment on that occasion. We specifically reject that Mr Sharma placed his hands directly on his penis through his trousers and said, “this I will put in you”, which the Claimant puts forward as a threat of rape. He did not say that he would make her handicapped.

5.22 As stated above, we do not find that the Respondents have deliberately deleted a passage of CCTV coverage in which this could be seen. Given where Mr Sharma was stood, we would not have seen this, anyway. We did however see the Claimant’s reaction at this point. She was holding her ground in the argument. She did not behave as though someone had just threatened rape.

5.23 The Claimant did come to see Sunny on 10 September 2018. She told him that there was an imbalance in affection. Mr Sharma clearly liked her and she did not like him the same way. That is all the Claimant told him. She did not say there was anything more sinister than that. Sunny dealt with it in a skilful way by ensuring that Mr Manning had supervisory responsibility for the Claimant rather than Mr Sharma. We make no criticism of Sunny for his actions on 10 September.

5.24 Furthermore, we are clear that this was the first occasion that the Claimant raised the matter with Sunny. The Claimant has exaggerated considerably, also to Lord Ranger, the number of times she has raised this matter with Sunny.

5.25 We confine allegation 3 in the chronology to all matters up to 29 September 2018. We treat allegations 13 to 15 as relating to the second time that the Claimant raised concerns with Sunny directly and indirectly.

5.26 Turning then to allegation 13: there is a concerning piece of evidence against Sunny in respect of the meeting he had with her on 1 October 2018. The Claimant did email him on 4 October 2018, at 14:43, chasing a response to the meeting of 1 October. There is an express statement by her, and we have no doubt she had legal assistance at this point, to this effect: “When we met on Monday you told me that if I pursued this matter maybe I would lose my job, visa and honour. I told you the situation was intolerable and having a negative effect on my health and work.”

5.27 It is surprising that if this was to have been said, Sunny does not contradict it upon receipt. We understand that he withdrew from the investigation of the matter and relied upon Mr Qazi but this was a contention of fact as to what was said by him. In his witness statement Sunny says that he was, “very shocked to read her email alleging that I had blackmailed her and threatened her that if she pursued the matter she may lose her job, visa and honour as she alleges”. He said that was completely untrue. Why then did he not immediately contradict it in writing?

5.28 We are assisted by the burden of proof here. There is prima facie evidence contained in the Claimant’s email that there was an act of discrimination here. Sunny did not contradict it at the time. The Respondents fail to discharge their burden to show that this act of discrimination did not take place. We find, as we must pursuant to burden of proof rules, that it did.

5.29 As to allegation 14 and the failure to suspend Mr Sharma and moving the Claimant to a different part of the office: we find that this was a judgment call on the part of the management. Suspension would have been justified but we do not regard it as the only reasonable response. The Claimant was moved to a location outside Lord Ranger’s office with other female staff in the vicinity. She did not have to have contact with Mr Sharma at that location. The Respondents did not want to pre-judge the matter prior to the investigation. This may have not been an ideal response, but it was not a discriminatory response.

5.30 The blocking of the Claimant’s SARR email address was consistent with the decision that had been taken to transfer her back to SALF. It is true that that decision had not been communicated to the Claimant by the time she made her allegations against Mr Sharma to Gauri Narang. SARR was waiting for a suitable replacement to be in situ. That said, the reason for the closing of her SARR email account was the proposed transfer, it was not that she had raised allegations against Mr Sharma.

5.31 There is no doubt that the conversation between Lord Ranger and the Claimant was unfortunate in the extreme. Lord Ranger lost his temper and his composure and insulted the Claimant in a way which related to her gender and the fact that she was raising an allegation of sexual harassment.

5.32 Lord Ranger felt upset that the Claimant had not approached him much earlier about this matter. He told us that if she had done so, we would not be sitting in the Tribunal. He may be right about that but that was not the situation he was presented with on the day. We have heard the Claimant’s demeanour - she was not speaking in a controlled manner herself. Lord Ranger should have terminated the conversation and said the matter was subject to an internal enquiry. Instead, he lost his composure and insulted the Claimant in the ways set out. That amounted to unlawful discrimination.

5.33 Lord Ranger did victimise the Claimant contrary to section 27(1) of the Equality Act 2010, harass her contrary to section 26(1) of the Act, and directly discriminate against her contrary to section 13(1) of the Act when, in an intemperate telephone call on 5 October 2018, the Claimant having informed him she was raising allegations of sexual harassment, he stated –

(a) he would not ‘spare her’;

(b) he would get the evidence together and see her in Court;

(d) she had no virtues and compared her to a female member of a non-elite peasant caste;

(e) she was silly and stupid;

(f) she was a liar;

(g) she was an absolute troublemaker;

(h) she was a horrible girl;

(i) she had ruined her parents’ honour.

5.34 This is victimisation because she was making a protected act by raising the issue of sexual harassment. The words and attitude represented by them amounted to detriments. It was harassment because the words and attitude represented by them were unwanted conduct relevant to her gender (the complaint of sexual harassment) and they had an effect of violating the Claimant’s dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for her. It was also direct discrimination although the other causes of action provide a better fit. He would not have treated a man in a hypothetically similar situation by the use of those words.

5.35 We do not find that Lord Ranger threatened to kill the Claimant. He did say he would ‘not spare her’ by which he meant he would not spare her from the consequences of, as he prejudged it, defaming his staff and his company. He did not call her a prostitute. He did call her the matters listed, however. He did compare her to a caste of peasant workers. He did say to her that he would see her in court. His comments inevitably undermined the efficacy of the investigation in terms of its perceived independence that followed.

5.36 The Tribunal rejects the suggestion that Mr Qazi’s meeting with the Claimant on 10 October 2018 was in any sense discriminatory. He asked her for her version of events. That part of the conversation that was in English was recorded by Ms Perera. Mr Qazi did not listen to the recording of Lord Ranger’s telephone discussion with the Claimant. Ms Perera’s notes were not in pencil: they were in pen.

5.37 The Claimant did not wholly engage with Mr Qazi’s investigation. That is not surprising following the conversation she had with Lord Ranger. The Claimant was not prepared to sign a witness statement; she did not submit any further information.

5.38 As to allegation 18: it is right that Mr Qazi focussed upon the Claimant’s allegations against Mr Sharma. He evaluated whether he was in a position to uphold one account as against the other. He concluded he could not. He did not look at any allegation against Sunny or against Lord Ranger. His terms of reference were to investigate the allegation of sexual harassment and assault made by the Claimant against Mr Sharma.

5.39 We do not criticise Mr Qazi for not investigating what he was not asked to investigate. In so far as there was a failure, it would be on the part of Sunny and Lord Ranger. It would have been for Sunny and/or Lord Ranger to report themselves for investigation if they felt that appropriate. We have looked carefully but we cannot find evidence to the effect that the Claimant raised with Mr Qazi complaints against Lord Ranger or Sunny.

5.40 It is not claimed that Lady Ranger, as the Head of HR, missed a point here as an act of discrimination either. That is to say, by failing to extend Mr Qazi’s terms of reference.

5.41 We have already found that no criticism can be made of Sunny for failing to investigate matters prior to 30 September 2018 because, on 10 September 2018, the Claimant did not raise a grievance.

5.42 Mr Qazi did not know the content of the conversation between Lord Ranger and the Claimant as we know it now with the transcript and translation. He was aware that a heated conversation had taken place, Lord Ranger had told him that. No one had asked him to investigate it as a potential act of discrimination.

5.43 The Claimant had not raised grievances prior to approaching Gauri Narang.

5.44 The second element of allegation 19 is criticism of Lady Ranger’s mention in the letter of 8 October 2018 that the Claimant would have to explain her unauthorised absence to Mr Qazi. We deal with this above. It was a mistake made by Lady Ranger, as she herself acknowledged to us, in that there was a certificate in existence. Lady Ranger also regretted the use of that phrase in that letter. We find above that the phrase did not amount to a detriment at the time. It was not pursued internally. It has, of course, been pursued before us. On balance, this could not be regarded by a reasonable employee as a detriment.

5.45 The Respondents did want to discuss the findings of Mr Qazi with the Claimant in person when she returned to work. That was not an unreasonable position. As it transpired, she did not return to work because of on-going sick leave. The Respondents contacted the Claimant on 30 October 2018 indicating that the investigation had been completed and they wanted to consult her about it.

5.46 Mr Qazi did invite the Claimant to submit a written statement. The first such request was 16 October, repeated, we believe, on 30 October and on 7 November. We accept from Mr Qazi that it had been discussed at the interview on 10 October that the Claimant would provide a written statement. It seems she chose not to do so. As we say, we are not surprised she did not engage with this process given the discussion she had with Lord Ranger. There is however no discrimination in the conduct of Mr Qazi in trying to obtain her statement or in delaying sharing with her the outcome, hoping she would return to work. IN THE WATFORD EMPLOYMENT TRIBUNAL Case no: 3334669/2018 BETWEEN: Ms R Kaur CLAIMANT -and- Sun Mark Limited & Others RESPONDENT(S) SCOTT SCHEDULE KEY to Defendants: R1 Sun Mark Ltd – SM R2 Raminder Singh Ranger – Rami R3 Kapil Sharma – Kapil R4 Ravinder Singh Gidar – Ravinder R5 SARR Management - SARR R6 Sea Air and Land Forwarding Ltd – SAALF R7 Harmeet Singh Ahuja – Sunny R8 Nayaz Qazi – Nayaz R9 Renu Ranger – Renu The Claimant waived her right to anonymity in this matter on 10 March 2021 in proceedings before the Employment Appeal Tribunal PAGE NUMBER BELOW REFER TO PAGE NUMBERS IN BUNDLE FOR FINAL HEARING THIS DOCUMENT IS TO BE READ IN THE LIGHT OF THE AGREED LIST OF ISSUES DATED 25 JULY 2019 [p.66] No. Date Para Respondent Alleged Summary of Allegation Cause of Respondents’ Response no. facing Perpetrator action allegation Det1 Early 26-29 R6, R1, R3, Kapil Kapil saying ‘I love you’ (meaning Denied July R2. that he wanted to have sex with her); [Para 34 of KS Witness Statement] and 2018 when she ignored him, he took hold of (3) her hand tightly and said, why don’t you listen to me, look at me, I love you”; Kapil stating that he could sack any employee and asked the Claimant whether she valued her job and visa; Kapil acting in an intimidating manner regarding the call to the police. The incident occurred in the Det2 July 30-31 R6, R1, R3, Kapil Every day Kapil said to the Claimant, Denied 2018 R2. ‘Raman, have you decided?’ (whether [Para 35 of KS Witness Statement] and or not to have sex with him) and (3) threatening her by reading out an imaginary list and say “Remember what I told you. You will lose your job, your visa, your income and your parents, if you don’t go with me to the hotel (to have sex with him) you will be (out of work and) on the road begging for money. The incidents office on the first floor. No one else Det3 Late R6, R1, R3, Sunny Sunny, at all relevant times, failing to S13 S27 Denied 32- July R2. take the Claimant’s complaints of S26 (1) [Para 25-30 of HA Witness Statement] 33, 2018 harassment seriously, and failing to 10 September 2018 56- and to investigate the actions of Kapil or 57, date of take any, or any appropriate action [Para 33-42 of HA Witness Statement] 73, ET1 against him, which meant that the 30 September 2018 – 1 October 2018 77- harassment did not end. The incidents 84, occurred in Sunny’s office in the Before the 10 Sept the Claimant made no complaint to HA, 100- SM/SAALF/SARR office building on therefore there was no failure to investigate. Matters were the first floor. No one else was first raised by the Claimant to HA on 10 Sept, to which he present. responded appropriately (see paras 27-30 of his witness statement) The next time HA received a complaint from the Claimant was on 30 September, to which HA responded in an appropriate way, see paras 33- 42 of his witness statement. Det4 August 34 R6, R1, R3, Kapil Kapil approached the Claimant and S26 (2) Denied 2018 R2. said that he loved her voice, her laugh [Para 36 of KS Witness Statement] and could not concentrate on his work because of her presence until he could feel her. Until he could feel her, he could not be satisfied. The incident office on the first floor. No one else Det5 7th 35 R6, R1, R3, Kapil Kapil asking the Claimant to go to a S26 (2) and Denied R2. hotel room with him and saying ‘you s26(3) [Para 37 of KS Witness Statement] August are not a virgin. Stop this drama. It will not make a difference to you. If you are that worried, I will not put it inside’. The incident occurred in the Det6 7th 37 – R6, R1, R3, Kapil Denied Kapil seeking to manipulate the S26 (2) 41 R2. This has been referred to as the hospital visit incident or the Claimant by saying , “If you will not and August alleged incident of 7 August in the Respondent’s witness listen to me, I will die” and after that (3) statements. he telephoned me and repeated the [Para 48-58 of KS Witness Statement] same and said that he would smoke, [Para 12-13 of RM Witness Statement] which made his asthma worse. [Para 8 of RK Witness Statement] Kapil then asking a colleague, Rahul [Para 23.2-24 of NQ Witness Statement] Makawana to tell the Claimant that he The Claimant was not pressurised by management/staff to was weeping and unwell so that he take KS to hospital and KS did not order the Claimant to would travel alone in a car with her. take him to the hospital as alleged or at all. KS and his The incidents occurred in the colleagues had all agreed, following a call to the 111 SM/SAALF/SARR office on the firsthelpline, that they would monitor how he was feeling and floor office. No one else was present, that he did not need to go to the hospital, however, the unless otherwise stated. Claimant was insistent on taking him to hospital as she said she also had a hospital appointment. When the Claimant and KS were on the way to the hospital the Claimant told him that she did not actually have a hospital appointment but that she wanted to take him to the hospital. KS Respondent questioned why she had done this, and the Claimant informed him that she had lied about her hospital appointment because she wanted to take him to the hospital and he had been refusing. KS insisted they returned to the office and the Claimant turned the car around and headed back towards the office. Whilst driving, the Claimant told KS about her family problems such as her brother's drug problem. The Claimant pulled the car over just before reaching the office to finish the conversation and they were stationary for 20-30 mins on a public side road. After this, the Claimant and KS returned to the office together. The Claimant was acting normally and returned to the office happily with KS. It is denied that any assault or harassment took place as alleged or at all. Det7 42 - 46 R6, R1, R3, Kapil Denied. See above re. Det6 7th Kapil refusing to get out of the car S26 (2) R2. [Para 35, 39, 48-58, 74.7 of KS Witness Statement] Augu when asked and saying to the and st Claimant “your top is very nice” and (3) “your boobs are very nice”. Kapil sexually assaulting the Claimant by Late grabbing her left breast outside of afterno her top and said, “this ball is very on nice”. When the Claimant started to cry, Kapil laughing and clapping and saying to the Claimant “for a few drops of semen you are making a drama” and threatening her again saying I will make you handicapped by breaking your arms and legs and you will be a beggar” Det8 Late 49-50 R6, R1, R3, Kapil Kapil telling the Claimant when two Denied August R2 . other female colleagues complained to [Para 40 of KS Witness Statement] and 2018/ Sunny, Sunny did nothing and the [Para 61 of KS Witness Statement] (3) early women were sacked. The Claimant [Para 49 of HA Witness Statement] Septem took this as a threat. On that date, [Para 22 of RenuR Witness Statement] ber Kapil saying “you are a bitch. You 2018 know that bitches don’t know how many dogs have “fucked” (he said the F-word in English) her”. The incident office on the first-floor office. No one else was present. Det9 Late 51 R6, R1, R3, Kapil Kapil said to her that he could not Denied August R2. concentrate when she was at the [Para 41 of KS Witness Statement] and 2018/ office because she was in front of (3) early him. He said that if she was not there, Septem he could be satisfied but when she ber was there, he could not control 2018 himself when she was in front of him. The incident occurred in the office Det10 Around 58 - 59 R6, R1, R3, Kapil Kapil asking the Claimant ‘have you Denied 17th R2. decided? Think carefully?” and [Para 42 of KS Witness Statement] and Septem repeating threats to the Claimant’s (3) ber and income and visa if she didn’t go to a thereaft hotel with him. The incident occurred er in in the SM/SAALF/SARR office on Septem the first-floor office. No one else was ber present. Det11 28th 61 – R6, R1, R3, Kapil Denied Kapil coming into the Claimant’s S26 (2) 64 R2. This is referred to as the Incident on 28 September in the Septem office and saying “you are not a and ber Respondents’ witness statements. queen, you are a slut” and calling her (3) [Para 62-74.8 of KS Witness Statement] a “prostitute”. He also expressed his [Para 58-68 of GN Witness Statement] annoyance that the Claimant was speaking with other staff. [Para 12-13 of RK Witness Statement] – the witness made The incident occurred in the reference to the term “hoor pari” which she understands to SM/SAALF/SARR office on the first- mean “you are not a heavenly fair” floor office. No one else was present. [Para 14-16 of RM Witness Statement] – the witness made reference to the term “Kyu Kya tum koi hoor pari ho” which he believes to be the very common and well-known Hindi/Punjabi phrase “why are you some sort of beautiful goddess.” See these witness statements for the context of the remark. Regarding investigation outcome relating to this Incident, see para. 23 of NQ’s Witness Statement See further the CCTV footage for 28 September 2018. Det12 28th 65 - 71 R6, R1, R3, Kapil Denied. See above. In relation to Det 11. Kapil blocking the Claimant from S26 (2) Septem R2. leaving the office and saying “Let’s and ber go tomorrow to the hotel. We will (3) discuss everything there.” Kapil pressurising the Claimant to go with him to a hotel. When the Claimant refused, Kapil saying: “I just want to feel you. What can’t you understand?” He then went through his set list of threats if she did not have sex with him. When the Claimant pointed out that there were cameras, Kapil saying “The cameras are here, dirty woman. The cameras are not on the stairs. Come there and I will show you.” (which the Claimant took as a threat to sexually assault her). Kapil placed his hand directly over his penis through his trousers and said: “This. I will put it in you.” (this was a threat of rape). Kapil threatening “I will make you handicapped, throw you out of the company and you will be on the road” when the Claimant continued to refuse to leave with him. The incident occurred in the SM/SAALF/SARR office on the firstfloor office. No one else was present. Det13 1st 77-81 R6, R7, R2. Sunny S26 S13 Denied Sunny telling the Claimant “yes, you S27 [Para 38-42 of HA Witness Statement] will lose your visa if you take this October matter forward legally” in response to her protected act. Sunny saying he will think about what should happen. The incident occurred in Sunny’s office in the SM/SAALF/SARR office on the first-floor office. No one else Det14 1st 82 R6, R7. Sunny Sunny and/or Rami failing to suspend S26 S13 Denied R6, R2. Rami Kapil and moving the Claimant to a S27 [Para 35-42 of HA Witness Statement] October different part of the office, without [Para 7-11 of RamiR Witness Statement] taking steps to provide a safe working [Para 6-11 of RenuR Witness Statement] environment for her, leaving her The Claimant was offered to be moved to the other building fearful of harassment. close to other female colleagues ad RamiR’s office. The other building had a separate entrance, therefore ensuring the Claimant and KS would not come into contact. The Claimant agreed this was a suitable solution. KS was informed by HA that an investigation would be taking place to which he agreed to fully cooperate and not have any interaction with the Claimant. HA and RenuR felt it was not necessary to suspend KS and were satisfied that the Claimant and KS were working at opposite ends of the building, preventing any interaction between them pending the outcome of the investigation. It is believed that a safe working environment was provided to the Claimant. Det15 5th 85-87 R6, R7, R2. Sunny/ Blocking the Claimant’s access to her S26 S13 Denied Octobe R6, R4, R5, Ravinder/ work email and Sunny telling the S27 [Para 8 of RG Witness Statement] r 2018 R2 Rami / Claimant this was because he and [Para 51-52 of HA Witness Statement] R6, R2. Directors another Director, Ravinder Singh [Para 12 of RamiR Witness Statement] R6, R4, R5, Gidar, had decided that she was to no R2 longer work for the hotel business. He said that she would therefore work for another business (which was not specified) and she needed to report to Rami directly Det16 5th 88-90 R6, R2. Rami During a recorded telephone S26 S27 Denied Octobe conversation, Rami saying “I will kill S13 [Para 13-20 of RamiR Witness Statement] r 2018 you”, “I will finish you”, “You are a prostitute”, “You are a very dirty The conversation was mostly in Punjabi. See the thing”, “I will take you to court and Independent translator’s translation of the recording bring a witness against you”, “Don’t (Produced by Aplomb, a translation company which was call Gauri”, “You are a very rude jointly instructed by the parties’ lawyers in accordance with person” and “You will see” the ET order of 24/4/20 [80]), This translation does not accord with the key aspects of the Claimant’s recollection of the words used. See Aplomb translation and certificate of translation [946] Det17 10th 94-98 R6, R8, R5, Nayaz During a hostile meeting, Nayaz S26 S13 Denied Octobe R1, R2 treating the Claimant like she was a S27 [Para 8-17 of NQ Witness Statement] r 2018 suspect, not a victim, asking the [Para 3-10 of MP Witness Statement] Claimant what proof she had and See notes of 10 October 2018 meeting [624 and 629] pressuring her to sign a statement MP attended the meeting with NQ and took handwritten written in pencil. notes using a pen (not pencil) which the Claimant was In response to the recording of Rami offered to sign. The Claimant declined. (Det 16) Nayaz dismissing the The Claimant was advised that she could bring a harassment and saying companion to the meeting, but she chose not to. NQ was Rami was angry and didn’t mean the supportive, ensuring that the Claimant felt comfortable words, demonstrating his bias. throughout the meeting. NQ followed the ACAS guidance The incident occurred in the Bridge (see paras 4 and 11 of NQ’s witness statement.) and held Hotel, Greenford. No one else was the meeting at a location away from the office. NQ acted present, except the attendees. appropriately and professionally carried out his role of investigator, gathering necessary information and asking many questions to help him understand the full extent of what the Claimant telling him. Det18 Around 99 R6, R8, R5, Nayaz Nayaz limiting the Claimant’s S26 S13 Denied 10th R1, R2 grievance to the conduct of Kapil and S27 [Para 8-17 of NQ Witness Statement] Octobe excluding the failure of Sunny to [Para 8-10 of RenuR Witness Statement] r 2018 intervene and investigate the sexual harassment and Rami’s harassment of her. Det19 12th 100 R6, R9, R2 Renu Failing to investigate her grievances S26 S13 Referring to Paragraph 100 of the Particulars of Claim, the Octobe R6, R7, R2. Sunny prior to 1 October 2018 S27 allegations were treated as a grievance after 1 October 2018 r 2018 - 102 R6, R2. Rami Ms Renu Ranger writing that the due to the fact that the Claimant had not previously raised R6, R4, R5, Ravi lawyer would need an explanation for any formal grievance or serious allegations against KS and R2 the Claimant’s ‘unauthorised had expressly stated to HA on 10 September that she did absence’, a false allegation of not wish to take any formal action. HA therefore acted in misconduct. accordance with the Claimant’s wishes and good practice. As for the allegation against RenuR it appears to relate to her letter to the Claimant dated 8 October 2018, which she explains in her witness statement and arise from the fact that she was not aware of a sick note submitted by the Claimant on 4 October. [Para 33-38 of HA Witness Statement] [Para 7 of RG Witness Statement] [Para 13 of RenuR Witness Statement] [Para. 7 of RamiR Witness Statement] Det20 30th R6, R8, R5, Nayaz Nayaz accusing the Claimant of not S26 S13 Denied 105- R1, R2 providing him with timely replies, S27 [Para 25-30 of NQ Witness Statement] Octo 110 giving no allowance to the fact that On 30 October 2018 NQ contacted the Claimant to inform ber she was on sick leave, and harassing her that the investigation had been completed and invited , 7th her to return to work so that he could the Claimant to a meeting to discuss the report and take her inform her of the outcome. views. In the same communication he also asked the Novem Claimant for an update on her health because she was still ber absent from work due to ill health. No response was received by the Claimant. On 1 November 2018 NQ and to followed up his communication of 30 October but did not date put any pressure on the Claimant to attend a meeting as he was conscious that she was on sick leave. On 2 November 2018 the Claimant assured NQ that she would respond following an appointment with her GP on 6 November 2018, however no response was received. NQ responded to the Claimant by email on 7 November. There was no pressure being put on the Claimant to return to work. The final investigation report was sent to the Claimant on 25 September 2019 following many attempts to meet with the Claimant to discuss the findings. The Claimant was invited to make contact if she wished to discuss the report. The Claimant did not respond.

[1]The claims made in these proceedings were the subject of a judgment on liability in the claimant’s favour. The tribunal which determined the liability issues relating to the claims was presided over by Employment Judge (“EJ”) Smail, who sat with Mr P Hough and Mr C Surrey (“the original tribunal”). That tribunal’s judgment with reasons was first sent to the parties on 27 November 2020. There was at that time a dispute over whether there should be a restricted reporting order in place. By 12 April 2021 the question whether there should be such an order in place had been determined and there was no such order in place. The judgment and reasons for it were then sent to the parties in unredacted form on 12 April 2021 and subsequently placed in such form on His Majesty’s Courts and Tribunals Service’s website. I refer below to that judgment and those reasons as “the liability judgment”.

[2]On 3 December 2020, the respondents appealed that judgment to the Employment Appeal Tribunal (“EAT”). At page 304 of the bundle which was before me for the hearing of 9 and 10 January 2023 (any reference below to a page is to a page of that bundle), there was a copy of an email from the respondents’ then solicitor to the claimant’s then solicitor, enclosing a copy of the documents “lodged with the EAT this afternoon in relation to ... the substantive judgment”. The question of what remedy the claimant should receive was then left to be determined only after the outcome of the appeal was known. The claimant’s schedule of loss was dated 5 November 2019 and claimed a total of £673,055.65. That figure was based on the proposition that the claimant would suffer future loss through having to return to live in India and would, if she were able to work, earn very much less than in the United Kingdom, where her basic salary had been £30,000 per year. It was her case that her mental health had been impaired by reason of the unlawful conduct of the respondents.

[3]The liability judgment was in part overturned on appeal by His Honour Judge (“HHJ”) Shanks sitting in the EAT in a judgment which was handed down on 25 February 2022. The part of the liability judgment which was overturned was a finding that the claimant had been victimised within the meaning of section 27 of the Equality Act 2010 (“EqA 2010”). That finding was made against the second and fourth respondents. HHJ Shanks found that the question whether the claimant had been so victimised had been determined erroneously and that issue was remitted by HHJ Shanks to be re-determined by the original tribunal. The factual background to the hearing of 9 and 10 January 2023 Preliminary hearing of 24 April 2020

[4]On 24 April 2020, there was a preliminary hearing by telephone. It was the second preliminary hearing in the case. It was conducted by me. The parties had agreed a list of issues and after careful consideration of it, I accepted that it was apt and said so. I recorded that fact in the first part of the written record of the hearing which was sent to the parties on 28 April 2020. One of the orders which I made at the hearing, as recorded at the end of that record, was this: “Disclosure and inspection

[5]It is ordered that the parties will give simultaneous disclosure and inspection of any documents relevant to the issues identified as stated above by the provision of a list of documents and copies of the documents on the list, to arrive on or before 4.00 pm on Friday 12 June 2020. This order is made on the standard civil procedure rules basis which requires the parties to disclose all documents relevant to the issues which are in their possession, custody or control, whether they(1) assist the party who produces them or any other party, or

(2) appear to be neutral.

[6]The documents which the claimant will need to disclose will include copies of any relevant medical records which she has not so far disclosed.

[7]The parties shall comply with the date for disclosure given above, but if despite their best endeavours, documents to come to light (or are created) after that date, then those documents must be disclosed as soon as practicable in accordance with the duty of continuing disclosure.” The claimant’s covert recording of 5 October 2018 5 One of the parts of the evidence on which the claimant relied in support of her claim was a recording which she had made of a telephone conversation which she had had with the second respondent on 5 October 2018. That recording was made without the knowledge or consent of the second respondent. The conversation took place in the Punjabi language. The claimant’s first language is Punjabi. One of the issues which arose at the hearing which I conducted on 24 April 2020 was whether the translation on which the claimant was proposing to rely was accurate. The translation on which the claimant at that time was relying was disputed, and I made orders relating to what was intended to be an impartial interpretation of the recorded conversation on which the claimant relied. The recording was at that time in the possession of the respondents. Two of the things which it was asserted by the claimant had been said by the second respondent were that(1) she was a prostitute and

(2) he would kill her. In paragraph 5.35 of the liability judgment, the original tribunal found specifically that those things were not said by the second respondent: “We do not find that Lord Ranger threatened to kill the Claimant. ... He did not call her a prostitute.” 6 The allegation that those things were said was based on the fact that they were included in a translation of the recording of the conversation of 5 October 2018 which was made by a company called Atlas Translations Limited (“Atlas”). I was told on 9 and 10 January 2023 by Ms McKie that she had put it to the claimant during cross-examination in the liability hearing that Atlas had been persuaded by the claimant or her then solicitors to include those things in the translation. It was not disputed by the claimant on 9 and 10 January 2023 that she had been cross-examined in that way. The translation provided by the impartial translator who was identified as a result of the orders which I had made on 24 April 2020 did not include the statements that the claimant was a prostitute and that Lord Ranger, the second respondent, would kill her. The liability hearing 7 The hearing which led to the liability judgment took place on 7-11 and 14-18 September 2020. That hearing (“the liability hearing”) was in person at the Watford Employment Tribunals hearing centre. During the claimant’s crossexamination in that hearing, she referred to a notebook which she had, she said, kept during the period to which the claim related. During the liability hearing, in the circumstances recorded by the original tribunal in the liability judgment which I set out in paragraph 10 below, the claimant gave the tribunal that which she said was the notebook with all of its material pages, and that which she gave to the tribunal was copied and put in the hearing bundle. The claimant also said in cross-examination in the liability hearing for the first time that she recorded the conversation of 5 October 2018 with the second respondent to which I refer in the preceding paragraph above on a mobile telephone other than her usual, or main, mobile telephone.

[8]It was the claimant’s evidence at all material times that she had started to record that conversation some minutes after it had started. The original tribunal recorded that evidence in paragraph 4.35 of the liability judgment, which started with this opening section. “We have listened to the tone of this conversation on several occasions, reading at the same time the jointly instructed translator’s translation. The Claimant started to record her conversation with Lord Ranger some minutes into the conversation. She recorded it on a second mobile phone, we understand. No point has been taken about admissibility. The Claimant was speaking in a very fast and loud fashion. Lord Ranger is plainly angered by what she is saying. They speak over one another. Bits of the translation were put to Lord Ranger. Where he disagreed with the translation, he gave his version.”

[9]At no stage before the liability hearing did the respondents seek to inspect the mobile telephone on which the claimant had made the recording of the conversation of 5 October 2018 on which she relied, in order to see whether or not she had in fact recorded the whole of the conversation and had deliberately not disclosed the first part of it.

[10]It was, however, put to the claimant during her cross-examination in the liability hearing that the notebook the existence of which she first revealed in crossexamination was at least in part a fabrication and that she had deliberately removed relevant pages from it. The respondent did not, however, seek an adjournment to permit it to seek expert evidence in relation to those possibilities. The original tribunal referred to the notebook in the liability judgment in paragraphs 4.61 to 4.68. The start of that passage was in the following terms: “The personal notebook 4.61 On the first day of her evidence the Claimant was asked whether she kept a diary. No diary had been disclosed. The Claimant responded that she did keep personal notes. That was a matter of surprise to all in the Tribunal because nothing had been disclosed. The Claimant was resistant to the idea that she should produce it because as far as she was concerned it was personal to her and not meant for public consumption. The Tribunal finds as a fact that this was a genuine position on her part. She had no intention of producing what was in the notebook to anyone. Nonetheless, we ordered its production. She asked whether she could edit the amount disclosed by taking pages out. We made it clear that this was not possible and on day 2 of her evidence she produced the notebook, which is a 200 page Pukka Jotter Pad. Not all 200 pages remain but there were a number of pages written in Punjabi in different coloured inks suggesting they were written at different times containing material relevant to the allegations the Claimant makes. 4.62 As far as we can tell, the entries were not in chronological order. Some of the entries were irrelevant being shopping lists and the like but otherwise there was relevant material in it. We do not know precisely when the entries were made. It is not a diary, it is a notebook with observations made in it, but we are clear on the balance of probability that this document was not manipulated by the Claimant for the purposes of these Tribunal proceedings. It amounts to a genuine notebook in which she has recorded her thoughts. To that extent there is some evidential value in what she has said. Some of the entries are addressed to the Claimant’s mother, not perhaps with the intention her mother reading them but in terms of the mode of dialogue adopted by the Claimant. Some passages are consistent with the Claimant’s evidence that she considered suicide. The entries are frequently poetic in quality.”

[11]During the liability hearing, the respondents were able to inspect the notebook, but it was given back to the claimant by the end of the hearing. The respondents’ first request for the inspection of the mobile telephone on which the claimant recorded the conversation of 5 October 2018 and for the reinspection of the notebook

[12]As I say above, the liability judgment was promulgated in unredacted form on 12 April 2021. The respondents’ then solicitors wrote by email at 3.45pm on 21 May 2021 to the claimant’s then solicitor, Mr Lawrence Davies, in the following terms (the letter was at pages 110-111): “We write in relation to the above-named matter. We note that you have not responded to our letter dated 12 May 2021 in relation to the discrepancies and inconsistencies with the translation of the phone call which you provided and request a response as a matter of urgency. In addition to the matters set out in our letter dated 12 May 2021, we request that your client discloses and/or makes available for inspection the following: 1. Telephone records for all mobile phones between July 2018 and October 2018: Ahead of the hearing in relation to the First Claim, we requested that your client disclose her telephone records for the period from July 2018 to October 2018. These records should have been disclosed by your client in accordance with her general duty of disclosure in any event. The phone records for one phone (07477554851) were provided for September and October 2018 however, despite your assurances that the remainder of the records would be provided, they were not disclosed by your client. It also came to light for the first time during the hearing of the First Claim that your client has a second mobile phone which had not been previously disclosed. The telephone records are highly relevant to the Second Claim in which our clients are contending that your client acted in bad faith. We also consider that the telephone records may be relevant to the Appeal and we consider that this evidence would meet the test set out at paragraph 9.3 of the Employment Appeals Tribunal Practice Direction. We therefore require your client to disclose her telephone records (for all her mobile phones) for the period 1 July 2018 to 31 October 2018. In the event that any such records are not provided by the network providers, we require written confirmation from them as to the exact reason why such records have not been provided. 2. Your client’s second phone: As stated above, during cross-examination of your client during the hearing of the First Claim, it transpired that your client had a second mobile phone which was used to record the telephone conversation between your client and our client, Lord Ranger, on 5 October 2018. We request that this second phone be made available for inspection by our client so that a forensic examination can be carried out in relation to the original recording of the telephone conversation dated 5 October 2018. This is again relevant to the Second claim in relation to the contention that your client was acting in bad faith and may also be relevant to the Appeal and again, would meet the test set out in the Practice Direction. 3. Your client’s handwritten notebook: During the hearing of the First Claim, your client referred to a handwritten notebook. Again, this had not been previously disclosed in accordance with your client’s obligations to disclose all relevant information and the first time we were made aware of this was at the Hearing itself. We require a full copy of the notebook and also for the original to be made available for inspection by our client so that forensic examination can be carried out (the examination of the notebook was clearly not possible at the Hearing due to the limited time available). This evidence is relevant to the Second Claim as it goes to the issue of your client’s bad faith and credibility. It is also relevant for the purposes of the remedy hearing in relation to the First Claim as the notebook contained entries relating to your client’s alleged medical condition. Again, we contend that it may also be relevant for the Appeal and again, would meet the test set out in the Practice Direction. We request that the evidence requested above is provided/made available for inspection by no later than 27 May 2021. Should your client not be willing to comply on a voluntary basis, we are instructed to make an application to the Employment Tribunal and the Employment Appeals Tribunal for an Order for specific disclosure alongside a wasted costs application (for the reasons set out in our letter dated 12 May 2021).”

[13]The reference in that letter to a second claim was made because the claimant had made a further claim to the tribunal. She subsequently made a third claim to the tribunal. There was a preliminary hearing in relation to those two new claims on 16 November 2021. It was conducted by EJ Wyeth. His record of that hearing (which was sent to the parties on 13 December 2021; I return to that hearing and EJ Wyeth’s record of it below) included this paragraph: “It was apparent from the draft lists of issues prepared by each side that the claimant is seeking within these two claims to pursue the following complaints: 1) victimisation (contrary to s27); 2) harassment related to sex; and (in relation to claim 3302600/2021 only); unfair dismissal.”

[14]Mr Davies replied to the respondents’ solicitors’ emailed letter of 21 May 2021 which I have set out in paragraph 12 above 32 minutes after receiving that letter. The email was at page 112 and was so far as material in these terms: “We assume that your client has instructed you to go on a costs fishing expedition. We do not intend to engage with you on the same at this time. In our view, it is simply part of your client’s attempt to rack up our client’s costs before the remedy hearing, and part of his SLAPP tactics. As you will soon discover, given your client’s continued unreasonable conduct, we are bringing the first UK case for SLAPP damages at the ET as a result. In any event, you appear to be asking us for information or documents which you should have sought orders for at or before the trial is [sic] they were matters of concern for you at the time. Indeed, if they were important to your client you will need to explain to them your potential liability in professional negligence in not seeking an order for the same at the relevant time. You cannot re-litigate the matter post-Decision. ... To deal with your client’s unreasonable conduct a third ET claim has been issued and further ET claims will be issued each and every time she is further harassed or victimised by your client. I would prefer to do so as a job lot but there is the risk that there is no continuing act post-employment (although the case law is unclear on that), so each will have to be issued within 3 months of the act concerned. This no doubt will be served on your client in due course. If it assists, we are focusing on defeating the baseless appeals and then focusing on the remedy hearing. We are not interested in corresponding on matters your client is raising in what appears to be a malicious, wholly out of time, baseless fishing expedition for disclosure. No disrespect (or indeed agreement with your client's vexatious points) should be inferred from our radio silence before the EAT appeal on all matters save for those that genuinely relate to the appeal. In that regard, we are due to update the EAT on our Counsel’s latest dates to avoid on Monday and will copy you in on that communication. Once your client has lost their appeals, we would hope that you would agree to the ET remedy hearing being expedited, whether or not your client then seeks PTA to the Court of Appeal, as regrettably seems woefully likely.”

[15]In fact, the claimant made only the two further employment tribunal claims to which Mr Davies referred in that email, that is to say she made no more such claims after that email was sent. During 2022, both of those further claims were withdrawn and dismissed on their withdrawal. The application for inspection of the mobile telephone and reinspection of the notebook

[16]On 16 June 2021 the respondents applied (in the letter at pages 114-117) to the employment tribunal for an order for inspection of the claimant’s second mobile telephone and the notebook which was disclosed only during the liability hearing. In effect, that was an application for an order requiring the claimant to permit the respondents to inspect the telephone and again to inspect the notebook. The claimant gave evidence to me on 9 January 2023 via an interpreter and in crossexamination she accepted that at the latest by June 2021 she was aware that the respondents were seeking to inspect (using that term as it is used in Part 31 of the Civil Procedure Rules 1998) the mobile telephone on which she had (she said) recorded the conversation of 5 October 2018 in paragraphs 7-9 above and again to inspect the notebook which she had disclosed only during crossexamination in the liability hearing. The preliminary hearing of 16 November 2021 conducted by EJ Wyeth

[17]The hearing before EJ Wyeth of 16 November 2021 was conducted by telephone. Mr Davies appeared at it for the claimant. EJ Wyeth at that hearing(1) consolidated the two further claims to which I refer in paragraphs 13 and 15 above, and

(2) listed (a) a full merits hearing to take place over six days starting on 31 October 2022 to determine those two further claims and (b) an open preliminary hearing to take place over 24 and 25 February 2022 at Watford Employment Tribunals. The things to be considered at that preliminary hearing were these (which I took from the document recording that hearing which was not in the bundle for the hearing of 9 and 10 January 2023, but which was in the tribunal’s file for the case to which this document relates): “3.1 Whether the tribunal has jurisdiction to hear any of the complaints either because they are said to be 1) not closely connected to the claimant’s employment relationship; 2) protected by judicial immunity; and/or out of time; and/or 3.2 Whether any claims should be struck out under Rule 37 of the Employment Tribunals Rules of Procedure 2013; and/or 3.3 Whether a deposit should be ordered to be paid by the claimant in accordance with Rule 39 of the 2013 Rules on the basis that any of the claims have little reasonable prospect of success; 3.4 Further case management matters which then arise.”

[18]EJ Wyeth’s record of the hearing of 16 November 2021 contained the following material passage. “13. Notwithstanding the listing of the OPH in February 2022, Ms McKie QC on behalf of the respondents sought today to pursue an application that was said to have first been made in June this year relating to the inspection of a notebook that was apparently produced by the claimant on the third day of the trial chaired by EJ Smail (claim number 3334669/2018) at the tribunal’s request following her reference to it in cross examination the day before. It was agreed that this notebook was produced for inspection at the tribunal in September 2020 and photocopies of its pages were supplied by the claimant’s legal team to the respondents during the trial. I am told that the notebook contains entries that may relate to the claimant’s mental health so as to be relevant to any remedy due in relation to her initial claim determined last year. It is also suggested that this may be relevant to any bad faith argument being asserted in defence of the complaints of victimisation in the existing two further claims currently before me.14. I enquired as to why the respondent was seeking to have the application dealt with today rather than deferring it to the OPH when the tribunal will have had a proper opportunity to digest the relevant material. In response I was told that the respondents were concerned about the impact of the passage of time. I struggle to understand why the passage of time has only now become a concern given that the existence of the book has been known about since September 2020 and yet, I am told, the first application to further inspect it was not made until June 2021. I also cannot disguise my unease at a request to order further production of an item for forensic inspection when that item was produced at the previous trial and is being sought after the tribunal chaired by EJ Smail has made findings of fact about its content. I understand no such application was made to the tribunal at that time, although that in itself is not entirely surprising given the inevitable delay to the trial that would have been caused as a consequence.

15. I am told that the initial claim (more specifically remedy) has been stayed pending an appeal to the EAT that is due to be heard in full in mid-December this year. If the notebook is relevant to any award of remedy in respect of the initial claim, then it seems to me the application is premature and should only be addressed once the stay is lifted or the outcome of the appeal against liability is known. I interpose here that I also have some concerns about whether this is an application that should be considered by any Employment Judge rather than one that is directed to be heard by EJ Smail who will be responsible for dealing with remedy if the stay is lifted.

16. Alternatively, if the notebook is relevant to the two subsequent claims that are before me today I am unsure why the matter should be dealt with outside of the usual process of disclosure that will inevitably be ordered to take place once the issues have been identified in final form in due course.” Email from Atlas to the first respondent of 6 January 2022

[19]On 6 January 2022, Atlas wrote to the first respondent in the following terms (pages 128-129): “On 16 January 2019 we were contacted by email by our client to provide a quotation to transcribe in Punjabi and translate into English a recording of four minutes for an employment tribunal We emailed a quote on the same day and received a link to an audio file on the 24 January 2019. We were given the go ahead to proceed on the 28 January 2019. We drafted a copy of the transcription and the translation, and this was sent at the end of January 2019. Queries were raised by the client and these were answered and a revised version was sent in February 2019. This work was completed by a professional transcriber and translator (PK/MG) at a company who are ISO certified and members of the ATA. We were then contacted again by our client in June 2019 to consider some amendments. As our original transcriber/translator was unavailable, we asked a second transcriber/translator to consider these amendments. This translator (PS) has worked for us for 10 years on over 50 projects. Qualifications include: Diploma in Public Service Interpreting (Local Government-1995) Diploma in Public Service Interpreting (English Law- 2010) Diploma in Translation - 2003 Membership of Professional Bodies National Register of Public Service Interpreters (NRPSI) (1997) Member of the Chartered Institute of Linguists (MCIOL) Association of Police and court Interpreters (APCI) Experience Interpreting: 18 years’ experience of interpreting for the police, CPS, the courts, solicitors, hospitals, councils, DWP and language agencies. Translation: 18 years’ experience of translating legal, medical and a variety of public sector documents. We then provided a revised copy to our client.” The hearing of 24 February 2022

[20]The barrister who represented the claimant at the liability hearing, Ms Aly, also represented the claimant at the preliminary hearing of 24 February 2022. Ms Aly put before the tribunal a written response to the applications which the respondents were pressing at that hearing. That response was sent to me by the respondents by email during the hearing day of 9 January 2023. It contained this material passage: “(4) Application for advance disclosure of Claimant’s notebook & phone.17. It is averred that the Claimant’s notebook and phone were only a relevant piece of evidence in relation to her first claim. This is a matter that has already been adjudicated, and is currently awaiting the outcome of appeal with respect to the Second and Fourth Respondents. They are of no evidential value whatsoever in the present claims. The Claimant relies on submissions made at paragraph 13 of these submissions in relation to the Respondents’ repeated attempted arguments in relation to bad faith which are ill advised and misconceived. [Paragraph 13 of those submissions was in these terms: “The Respondents raised the arguments in relation to bad faith in relation to the first claim at Tribunal briefly, and these were rejected in their entirety. The appeal in relation to Mr. Sharma has been rejected in its entirety. It is averred that the Claimant cannot be said to have acted in bad faith where there are proven allegations of sexual harassment against Mr. Sharma, acting in the course of his employment with the First Respondent. It is averred that continuing to raise such arguments and reflections at this stage is completely misconceived, given the tribunal decision and subsequent appeals.”]

18. If, which is denied, the notebook is of any relevance whatsoever in relation to the current claims, it is averred that these should be disclosed by way of ordinary disclosure, and an application for specific disclosure can be made following this if the Respondents still wish to pursue it. There is no value whatsoever in early disclosure of the same and it amounts to nothing more than a fishing expedition for the Respondent to bolster their appeal in relation to the first claim.

19. The Respondents already made an application in relation to inspection of the notebook in relation to the First hearing. In response to the application, the notebook was given to the Respondents overnight to inspect. No application for a forensic expert was made at the time. 20. It is averred that a forensic analysis of the notebook at this stage would be of very limited, if any, evidential value. It is known that the notebook has already been handled by both Counsel, the Tribunal panel in the first claim, the solicitors for both the Claimant and Respondents and an unknown number of Respondent witnesses when the notebook was in the Respondent’s possession.

[21]The Respondents made no application for inspection of the phone in relation to the first claim, and none was therefore granted in relation to it. The Claimant repeats her arguments in relation to relevance of such disclosure at this stage. It is averred that the Respondents have made no compelling arguments for advance disclosure of the same.” 21 The claimant accepted in cross-examination before me on 9 January 2023 that21.1 she was present at the hearing of 24 February 2022, which was in person,

21.2 she saw the document containing that passage on that day, and

21.3 there was at the hearing a discussion between

(1) Ms McKie

(2) the judge who conducted the hearing and

(3) Ms Aly about the applications to which that passage related.

[22]The claimant also acknowledged to me on 9 January 2023 that she was able to understand what that discussion was about, because she (the claimant) had sufficient understanding of spoken English. She described her use of the English language as “basic”, but the respondents referred me (without objection by Ms Chan on 9 and 10 January 2023) to an online recording of an interview which the claimant had with the television news programme Channel 4 News on 12 April 2021, and the claimant was plainly able to express herself reasonably clearly in the English language, and appeared to have a good understanding of that which was said to her by the interviewer in that language. However, in crossexamination before me the claimant denied knowing from paragraphs 18 and 21 of her counsel’s skeleton argument (which I have set out in paragraph 20 above) that it was being said on her behalf that the telephone and notebook might subsequently be made available to be inspected.

[23]The hearing of 24 February 2022 was conducted by EJ Tobin. He did not determine the application for a further inspection of the notebook and inspection of the mobile telephone. That was not recorded in any document which was before me, but it was clear from a document which was before me which, however, was inaccurate in the respects which I describe in the following paragraph below. That document was sent to the parties by email on 20 October 2022. The document was at pages 136-140. It was preceded by an email of 19 October 2022 from the respondents’ solicitor of which there was a copy at pages 141-142. That email contained this passage: “[T]he Tribunal will be aware that the Respondents have made numerous applications for disclosure against the Claimant which largely focus on the issue of the Claimant’s alleged bad faith and general lack of credibility. The Respondents strongly suspect that the Claimant has withdrawn her claims in an attempt to avoid having to provide evidence which would further damage her credibility.” The hearing of 9 August 2022

[24]The document at pages 136-140 indicated but did not state in terms what had happened at the hearing of 24 February 2022. The document was a record of a telephone hearing which took place on 9 August 2022. That hearing was conducted by EJ Tobin. The document at pages 136-140 wrongly gave the date of the hearing as 8 August 2022 and it wrongly recorded that Mr Davies was present at that hearing.

[25]In fact, the claimant did not attend that hearing either. It was attended on behalf of the respondents by Ms McKie KC. Mr Davies’ withdrawal as the claimant’s solicitor

[26]On 13 August 2022, Mr Davies informed the respondents’ solicitors and the tribunal by email that he was no longer instructed to act for the claimant. The claimant then instructed new solicitors. The listing of a further hearing to take place on 31 October 2022

[27]In the document at pages 136-140 it was ordered that “The hearing of 31 October 2022 to 7 November 2022 of [sic] is replaced with a Preliminary hearing (Closed) on Monday 31 October 2022 and Tuesday 1 November 2022.” Among other things, in paragraph 7 of the case management summary part of the document (at page 137), EJ Tobin said this: “The respondent still wants to pursue the disclosure applications. The respondent argues that these issues are relevant to remedy, especially as these enquiries may help clarify some ambiguity in the original decision and the EAT Judgment. The compensation sought is large and I am convinced that the respondent’s application may be relevant and the substantive information is not otiose. I am persuaded by Ms McKay [sic] that there remains a credible argument as to why the claimant should allow inspection of the second mobile home [sic] and her notebook, in particular, and that this matter should be fully aired before and [sic] order is made or refused. If the order is made both parties accept the need for over [sic] a joint expert (or individual experts, if not agreed which is likely given the history of this claim) in respect of the authenticity of the notebooks [sic].” The date when the claimant first saw that paragraph

[28]The document at pages 136-140 was sent to the claimant’s then solicitors (who had replaced Mr Davies). In cross-examination before me on 9 January 2023 the claimant accepted that she had received the document before 30 October 2022. In re-examination she said that she received it from the then-instructed solicitors on 25 or 27 October 2022. The claimant’s application for the postponement of the hearing of 31 October

[29]There was in the tribunal’s file an email from the claimant of 28 October 2022, in which she had applied for the postponement of the hearing of 31 October 2022. That application had been opposed by the respondent for reasons stated in an email of the same date (i.e. 28 October 2022) from the respondents’ solicitor. The claimant’s reasons for applying for the postponement of the hearing of 31 October 2022 were these: “Unfortunately, my legal representative are no longer acting for me and I am in the process of looking for a new representative. In the circumstances, I would be grateful if the matter could be adjourned until the next open date is available.”

[30]The respondent’s reasons for opposing that application were, principally, these: “1. This matter was listed for a PH on 9 August 2022. The Claimant's solicitor at the time (Lawrence Davies) emailed the ET at 9.44am very shortly before the PH was due to start (at 10.00am),stating that his wife was self isolating and his son was ill, and Mr Davies could not therefore attend the hearing. As a result of this, Employment Judge Tobin was not able to deal with all matters he intended to at that hearing; 2. Shortly thereafter (on 13 August 2022), Mr Davies informed the ET and ourselves that he was no longer instructed by the Claimant in this matter; 3. On 28 September 2022, we were informed that Mr Jeff Kong of Hunter Lawyers had now been instructed to represent the Claimant. However, for reasons which are not clear, Mr Kong informed us on Tuesday this week [i.e. 25 October 2022] that the Claimant had ‘terminated’ their retainer. 4. As such, it is clear that the Claimant did have every opportunity to have representation at the hearing on Monday however she has chosen not to avail herself of that representation. The Claimant has now had two different law firms acting for her and we submit on behalf of the Respondents, that this has now reached the stage where the matter must proceed rather than a further delay being incurred to allow the Claimant to instruct yet another firm of lawyers; 5. These proceedings have been ongoing now for almost 4 years. We submit that it is therefore critical that the matter goes ahead on Monday in order to make progress and case manage these proceedings towards some finality; 6. This particular hearing has been in the list for almost 12 months. If it is postponed, it is likely to be delayed again for a significant period. It would be a waste of the Tribunal’s resources and there will [be] significant costs incurred by Respondents as a result of the hearing being postponed at this very late stage; 7. The Respondents are suffering ongoing reputational damage as a result of the victimisation findings in the original Judgment, claims which have now been withdrawn by the Claimant, and this is a further reason why, we submit, the matter needs to proceed on Monday to deal with directions on this point; 8. The Respondents submit that the Claimant should be more than capable of dealing with and addressing the issues which are to be determined on Monday. The applications for disclosure have been ongoing for over 15 months and she is, in fact, the best person to address these as she has the direct knowledge of the factual background. For example, she is able to deal directly with the position regarding the second mobile telephone; whether she retains her notebook; whether she has any good reason to not allow inspection of them. She is also best placed to deal with why the Atlas translations changed and under whose instruction”.

[31]The claimant replied on the same day, 28 October 2022, at 16:12: “The overriding principle and objective to uphold justice. I have suffered mentally a lot in last 4 years and fighting this case by my own. Due to lack of funds and time I couldn’t find the new legal team and need few days to find a new representative. I have parted ways with my solicitors because they were not coming across professionally and not having the best interest at heart. It is not fair to expect me to find a solicitor with only a few days left to help me with a matter that is 4 years in length. I believe that I can find a solicitor in 7 days and if you can give me a new hearing date by end of November that will give a new solicitor the best chance to familiarize themselves with the case and therefore uphold justice by protecting and advancing my interest. I humbly request the Judge to consider my position by putting himself in my shoes as these circumstances are outside of my control and if for the sake of one month no adjournment can be given this will be a travesty of justice and Goliath will have beaten David.” The claimant’s witness statement of 30 October 2022

[32]At 18:59 on Sunday 30 October 2022, the claimant sent a witness statement to the respondent and the tribunal. So far as material, it was in these terms: “I Ramandeep Kaur (Claimant) make this statement in support of my claim to the employment tribunal. As you may be aware I kept a notebook as a journal as a therapeutic outpour of my feelings of the harassment and abuse I suffered at the hands of senior executives at Sun Mark and subsequently at the hands of Mr Ranger. It proved a great deal of help for me, as a practical tool as well as psychologically and emotionally to keep a track of what I had to go through. However, I was not made aware that I needed to retain the note book along with the second mobile phone. I was not made aware of the importance or implications of retaining both items, especially after winning case at tribunal in 2020. Therefore, I was surprised to be told by the respondents to produce these two items after such a long time and why they didn’t asked for it during and after the trial. In relation to the journal, back in 2020 while it had been enormously helpful, it was also a daily reminder of what I had had to go through. In fact, events that had at one point led me to contemplate suicide. At the time my fiancé, Mr Raivinder Singh (we are now married and are expecting our first child) was deeply concerned about my mental and physical health. But I had hidden the journal away because it contained information that was at once deeply sensitive and troubling. One day my husband happened to find it and read the contents of the journal and became so upset that he burnt it. He was determined to help me move forward with my life and the journal was a huge impediment to that. However, the court, my former legal representatives as well as the respondents have scanned copies of the notebook. With regards the second mobile phone, it was a very old iPhone model which I also discarded because it contained intimate pictures and memories about me and my husband (boyfriend/fiancé at the time) because in our religion and culture we are not allowed to have physical relationships before marriage.” What happened at the hearing of 31 October 2022

[33]The hearing of 31 October 2022 was not adjourned. I conducted it. As I recorded in my record of that hearing, of which there was a copy at pages 206-218 (that record was signed by me on 4 November 2022 and was sent to the parties by email on 7 November 2022), during the hearing the claimant withdrew her application for the postponement of the hearing. During the hearing, after I had said to the claimant that she did not need to answer my questions, but that it would be helpful to hear more about the circumstances in which she had (or her husband had) destroyed the mobile telephone and the notebook, she said these things, as recorded by me in paragraph 12 of my record of the hearing (at pages 211-212).33.1 When she had “discarded” the “very old iPhone model”, she had broken it up and thrown it into the river at Hayes. It had had a SIM card provided by Lyca Mobile in it, and she had left that SIM card in the telephone when she had thrown it in the river.

33.2 That SIM card was not registered to anyone, so that Lyca Mobile would not have any record of any mobile telephone number in her name.

33.3 She could not remember the (telephone) number of that Lyca Mobile SIM card.

33.4 She had used the mobile telephone with the Lyca Mobile SIM card in it only up to the point when she started to be absent from work on account of sickness, which was in October 2018, and she had used it only (or at least mainly) to speak to her mother in India. After then, she used the “calling over wifi” function on her (other, main) mobile telephone to speak to her mother in India.

33.5 Her husband had destroyed the notebook in her presence in December 2020, after the original ET’s judgment had been promulgated. He said to her that he wanted to destroy it and she said: “Okay”.

[34]The only material orders which I made during the hearing of 31 October 2022 (which I recorded in the record of the hearing at pages 216-217) in addition to adjourning the hearing to Monday 9 January 2023 and stating the matters to be considered at the adjourned hearing (with an interpreter of the Punjabi language present) were these: “Response to this document 2 If any party believes that there is any material error or omission in paragraphs 1-20 of the above case management summary, then that party should write to the tribunal within 14 days of receiving this document, stating in what way it is believed by the party that the summary is deficient or incomplete, and stating a proposed correction and/or addition. Any other party wishing to respond to that communication should do so within a further 7 days. Claimant’s further information 3 The claimant must, by 4.00pm on Monday 14 November 2022, inform the respondents of the number of the Lyca Mobile SIM card referred to in paragraphs 18 and 19 above. Claimant’s further witness statement 4 The claimant must, by 4.00pm on Friday 9 December 2022, state in a further witness statement4.1 whether she is claiming legal professional privilege and/or litigation privilege in regard to the communications with Atlas referred to in paragraphs 2.3 and 20 above and, if so,

4.2 whether she is willing to waive that privilege.”

[35]The matters which (in paragraph 16 on page 214) I stated which were to be considered at the resumed hearing on 9 and 10 January 2023 were these:35.1 ‘whether the claimant had acted scandalously, unreasonably or vexatiously within the meaning of rule 37(1)(b) of the 2013 Rules, and, in any event,’ and

35.2 ‘whether (applying rule 37(1)(e) it was “no longer possible to have a fair hearing in respect of the claim ... (or the part to be struck out)”.’

[36]The claimant did not write to the tribunal taking issue with my record of what she had said at the hearing of 31 October 2022. Claimant’s email to Lyca Mobile of 9 November 2022

[37]On 9 November 2022 the claimant wrote to Lyca Mobile by email (page 220): “Dear Lyca Mobile, My name is Ramandeep Kaur, DOB: 26th March 1985 address [and she gave her home address]. I would like to request any data held and number by Lyca mobile about me against a phone number I don’t remember but may have been registered under above details. This is for a legal battle I am fighting in the court against a member of the a House of Lords. Therefore it’s crucial for me to get this information. I used to have a Lyca mobile number between 2018 and 2022 although I don’t remember registering it with Lyca but just in case I did, it would be really helpful if you can share the details with me along with the data of calls during that period.”

[38]On 14 November 2022, the claimant signed a further witness statement. It was at page 221. It started in this way: “l, Ramandeep Kaur (Claimant) make this statement in support of my claim to the employment tribunal. I used a mobile phone sim card from a company called Lyca Mobile which is used mainly by migrants to make cheaper calls back home. It’s a number that can be purchased over the counter for £0.99 or sometimes even for free and can be topped by using a top up card widely available in high street shops including Tesco and Sainsbury’s. There is no requirement for the number to be registered under someone’s name and can be used simply using a scratch card. I used this sim to call my mother in India between 2018 till September 2018. When I discarded my old phone, I discarded the sim with it. I find it curious that the respondents want to have my mobile phone sim records in order to see whether I used the phone after I discarded my sim and phone both or not when it’s a widely known fact that if someone loses their phone a duplicate sim card can be easily requested from the provider. However, I have not made any effort to do that as I didn’t remember my sim card number. I have in the last 2 weeks tried my level best to find out the number of that Lyca number by contacting my mother who has provided a sworn affidavit that she never kept a record of my Lyca sim, the only number she has written down is the 02 number I was using in the UK.”

[39]On 9 December 2022, the claimant signed a further statement. It was at pages 234-236. In paragraphs 4 and 5, on page 235, she said this: ‘4. Any suggestion by the Respondents that I or my former legal representative instructed Atlas to change the translation of the above recording is simply untrue. Atlas is an independent translation company and were provided with the original recording to translate. The Respondents disagreed with the translation of the recording that was produced by Atlas. As a result, the parties were ordered to instruct a joint translator by the Tribunal and Aplomb translations (“Aplomb”) were instructed prior to the hearing of my claims to translate the recording. The Tribunal had the benefit of the translation from Aplomb at the hearing of my claims. A translator from Aplomb also gave witness evidence via video at the hearing of my claims regarding the translation. 5. It is wholly unreasonable and unfair of the Respondents to suggest that there were any attempts to have the Atlas translation changed so that it was less favourable to the Respondents when the Tribunal had the benefit of the Aplomb translation. Furthermore, no such suggestion was made by the Respondents at the hearing. I am therefore not prepared to waive privilege in relation to the communications between my former legal representative and Atlas.”

[40]In paragraphs 7-9 of that statement, the claimant said this: “7. The Tribunal is in receipt of two separate witness statements dated 30 October 2022 and 14 November 2022 relating to the request for specific disclosure of a notebook and telephone. I have explained in those statements why I am no longer in possession of these original items. However, I would like to add that both the Tribunal and the Respondents have copies of the notebook. I was instructed to produce the original notebook by the Judge during the hearing of my claims. The Judge ordered that the entire notebook was translated and Aplomb produced a transcript of the entire notebook for all parties including the Tribunal. 8. The Respondents also appear to be suggesting that I produced only part of a recording during the original Tribunal hearing. Again, this is incorrect. The entire recording was produced for the hearing of my claims. It was some significant time after the conclusion of the hearing that the Respondents made any request to inspect the phone on which I had made the recording. I believe the Respondents are merely seeking a re-trial of the issues that have already been determined by the original Tribunal on liability. I have in no way concealed or destroyed evidence that was relevant to the proceedings. The Respondents had the opportunity to inspect my original notebook and the phone on which the recording was made at the original hearing but failed to do so. 9. Since all parties had copies of the note book and recording, I did not think I would need to keep the original notebook which contained very sensitive and traumatic material relating to the events that took place during my employment with the Respondent, nor did I think that I needed to keep the phone. In any event, I do not see how either the phone or original notebook will assist the Tribunal deal with the issue of remedies. The Respondents’ strike out and/or costs application for failure to produce these items is simply unjust and unfair. The constant threat of costs and strike out is adding to the stress and mental illness that I am suffering.”

[41]On 4 January 2023, the claimant made a fourth witness statement in which she referred to what had happened to her second mobile telephone and the notebook. In paragraphs 5 and 6 of that statement, she said this: “5. With regards to the original notebook and phone that the Respondents are seeking disclosure of, I disposed of these items in December 2020 following the conclusion of the liability hearing and oral judgment that was delivered in October 2020. I was engaged during this period and the case was putting pressure on my relationship (with my now husband) to such an extent that I had thought of taking my own life. The circumstances of the case were particularly difficult for my partner to deal with as they involved harassment by another male. After succeeding with my claims in October 2020, I wanted to progress with my personal life and get married. The notebook was a constant reminder of the events and suffering that I had endured at the hands of the Respondents. My husband therefore destroyed the notebook (with my agreement) by burning it as he thought it would help me forget the difficult events that l had endured and that it would help us both move on with our Iives. 6. I also discarded the phone in December 2020 as the phone itself was old and had a cracked screen. There were also intimate pictures on the phone of my now husband and I. I did not wish anyone to see those images prior to our marriage as in Indian culture, intimacy prior to marriage is forbidden and can result in being cast out from the community. The community is extremely close knit and I was worried that the images may have been discovered before I was married. I therefore discarded the phone by throwing it in the river whilst I was in Hayes.” The claimant’s oral evidence under oath given on 9 January 2023

[42]The claimant’s home address was stated in the ET1 claim form for this case and it was the same in 2018 as it was in January 2023. During the hearing before me in January 2023, the claimant’s oral evidence suggested that she had been living with her now husband for some years, including from 2018 onwards. My notes of her cross-examination (which, like all of my notes quoted below, I have tidied up for present purposes) included the following passage. “Q: When did you get married? A: September 2021. Q: So why did you destroy your mobile phone in December 2020? A: Because I wanted to get married to my fiancé. Q: But if the only photographs on the phone were of you and your fiancé what was the problem? A: As we were not married at that time. Q: But if the only photos were of you and your fiancé what was the embarrassment? A: In the Sikh religion it is not a good thing to have photographs and stuff with anyone; and love photographs before getting married is a huge thing. Q: When did you get engaged? A: 2014. Q: So you retained intimate photos for 6 years? A: Yes. Q: And you were expecting to get married from 2014 onwards? A: At that time I did not have indefinite leave to remain; it would take 10 years. Q: At the last hearing you said that it was redundancy that prompted you to destroy the evidence; is that not the case now? A: That happened after I destroyed the phone. Q: You said it last time? A: No. You have misunderstood.”

[43]In fact, my notes of the hearing of 31 October 2022 recorded this (and I drew this to the parties’ attention during the hearing day on 9 January 2023): “The claimant said that she discarded the phone after the hearing in 2020. She said that she did so as she was distressed and suicidal. That was after she had received the judgment and she was made redundant. She said that she did not know that the phone was material evidence. She said that she was dismissed on 14 December 2020 for redundancy. She said that she told her solicitor in May 2021 that she had destroyed the phone. The claimant said that she did not understand fully what I was saying.”

[44]My notes of the cross-examination of the claimant on 9 January 2023 continued: “Q: You accept that the date you give for destruction occurred before you were made redundant? A: I would like to say I had said that I had destroyed the phone when there was a discussion around my redundancy as you asked me when I had destroyed the phone; and those were the dates I could remember. Q: Who did you expect to be able to find these photographs? A: The photos on the phone; if my fiancé had withdrawn from getting married or I had, he could have leaked those photos. Q: The phone was password protected? A: No. Q: Did you use your thumb or finger to access it? A: It was a very old phone; you could just press a button and open it. Q: Did your then fiancé have access to the phone or not? A: I never put the phone in front of him. Q: Did he know of the existence of the phone? A: Yes Q: Was he the one who took the photos? A: I do not want to answer this very private question. Q: How would he have access to the phone? A: As he could find it with any search of my stuff. Q: But he had taken the pictures? A: I do not want to answer this question as it is part of my private life. Q: You used the possibility of him finding the photos as a justification for destroying the phone? A: I have not come here to discuss the matter of the sexual affairs of me and my husband. I said that only because of the phone’s destruction. Q: Why not destroy the pictures? A: I chose to destroy the phone. Q: Did your fiancé send these photos to himself? A: I did not come here to discuss my private life. Q: Did he sent them to his phone? A: I was the only one who had access to the phone. Q: You said earlier that he had access to it too. A: We had a very small house. He could search for anything in it. Q: You say you destroyed it by smashing it to pieces? A: The screen was already broken so I destroyed the rest. Q: Did you drive to the river? A: One second. I walked. Q: How badly did you destroy the phone; was it in pieces? A: I broke it and then threw it in the river. Q: Why was it necessary to throw it in the river if you had already destroyed it? A: I have been suggested by someone [I think that the claimant there was saying that it had been suggested to her during the hearing] that an iPhone can be backed up but I do not know what that means so I broke it down and threw it into the river. [It was indeed suggested during the hearing that the contents of an iPhone can easily be backed up to iCloud: I myself referred to that possibility during the claimant’s evidence.] Q: Did you ever give the phone to your solicitor? A: No.

[45]During the hearing of 9 and 10 January 2023, the claimant accepted that her husband had been present at the liability hearing which took place (as I record in paragraph 7 above) in September 2020. She said that he had stormed out during the cross-examination of her about the contents of that notebook, but it was put to her that he was present for about half of that part of her crossexamination, and she did not disagree with that proposition. A discussion about the claimant’s evidence about the destruction of the mobile telephone and the notebook

[46]I have set out the claimant’s first stated justification for destroying the notebook in paragraph 32 above. It was made on 30 October 2022 and was this: “I had hidden the journal away because it contained information that was at once deeply sensitive and troubling. One day my husband happened to find it and read the contents of the journal and became so upset that he burnt it. He was determined to help me move forward with my life and the journal was a huge impediment to that.”

[47]That justification did not bear scrutiny for the following reasons.47.1 As I record in paragraphs 33.5 and 41 above, the claimant now says that her husband destroyed the notebook in December 2020.

47.2 The notebook had been disclosed by the claimant to the tribunal and the respondent only two months before then.

47.3 The claimant’s husband had plainly been well aware of the notebook and its contents at the very least by September 2020.

47.4 The suggestion that the claimant had hidden the notebook away “because it contained information that was at once deeply sensitive and troubling” and that her husband had “One day ... happened to find it and read the contents of the journal and became so upset that he burnt it” appeared to be a fabrication given the factors to which I refer in the three preceding subparagraphs above.

47.5 Whether or not it was such a fabrication, if the claimant did indeed destroy the notebook at that time, then she did so either just before the respondents appealed the liability judgment and her solicitor was informed about that fact (those things having occurred on 3 December 2020: see paragraph 2 above) or just after that appeal had been filed.

47.6 It was highly unlikely that the claimant’s solicitor had not told the claimant on or shortly after 3 December 2020 that the respondents had appealed the liability judgment.

47.7 In any event, whether or not the claimant was aware that the notebook was material evidence which the interests of justice required her to preserve fully until the case had been finally determined, destroying it would plainly be (and if it actually occurred, was) unreasonable conduct within the meaning of rule 37(1)(b) of the Employment Tribunals Rules of Procedure 2013 (“the 2013 Rules”).

47.8 In fact, the claimant’s evidence about the manner in which the notebook was destroyed had the following inconsistencies in it.47.8.1 Initially, as I record in paragraph 46 above, the responsibility for destroying the notebook was put at the door of the claimant’s husband. However, as I record in paragraph 33.5 above, the claimant then told me only one day after making the statement from which I have set out an extract in paragraph 46 above, that she had been involved in the decision to destroy the notebook.

47.8.2 On 4 January 2023, as I record in paragraph 41 above, the claimant’s stated justification for destroying the notebook was this: “After succeeding with my claims in October 2020, I wanted to progress with my personal life and get married. The notebook was a constant reminder of the events and suffering that I had endured at the hands of the Respondents. My husband therefore destroyed the notebook (with my agreement) by burning it as he thought it would help me forget the difficult events that l had endured and that it would help us both move on with our Iives.”

47.8.3 That too was inconsistent with the claimant’s first description of the reason why her husband destroyed the notebook: see paragraph 46 above.

[48]In any event, the claimant had either said nothing at all about the destruction of the notebook during the whole of the period from the time when she first knew that the respondents were seeking again to inspect the notebook, which was (see paragraph 16 above) at the latest June 2021, until 30 October 2022, or she had told her solicitor that she had destroyed it and he had then knowingly failed to inform the respondents and/or her counsel of that fact. The claimant then (as I record in paragraph 21 above) heard Ms Aly, her counsel, advance the arguments set out in paragraph 20 above at the hearing of 24 February 2022 and did not inform either Ms Aly or the tribunal (or anyone else, it appeared) that there was no point in anyone spending any further time on the question whether the notebook should be made available again, as it was no longer in existence.

[49]As for the claimed destruction of the claimant’s seconds mobile telephone, the claimant’s first stated justification for that destruction (which I have set out in paragraph 32 above), made on 30 October 2022, was this: “With regards the second mobile phone, it was a very old iPhone model which I also discarded because it contained intimate pictures and memories about me and my husband (boyfriend/fiancé at the time) because in our religion and culture we are not allowed to have physical relationships before marriage.”

[50]Paragraph 6 of the claimant’s witness statement of 4 January 2023, which I have set out in paragraph 41 above, was to a similar effect, but in addition it contained the assertion that the claimant discarded the mobile telephone because it was old and its screen was cracked, and that assertion was given as the primary reason for discarding the telephone.

[51]In considering that explanation I took into account the following factors.51.1 The photographs were necessarily taken by or with the knowledge of the claimant’s now husband. The claimant’s refusal to answer the question whether or not he had taken them (see paragraph 44 above) was based on the proposition that she did want to answer questions about her private life. However, the fact that she had the photographs on her mobile telephone (assuming that she was telling the truth in that regard) meant that that aspect of her private life was now, at her own volition, firmly in the public domain. Her refusal to answer that question was in my view evasive and objectively unjustified.

51.2 The claimant and her fiancé had by December 2020 (see paragraph 42 above) been engaged for at least six years.

51.3 They had (it appeared clear from the claimant’s evidence: see paragraph 42 above) been living with each other at least from 2018 onwards. They were therefore living together openly without being married for several years before their marriage: they were married (see also paragraph 42 above) in September 2021.

51.4 The claimant’s oral evidence was (see paragraph 42 above) that she had retained intimate photographs of herself and her fiancé for 6 years and then (see also that paragraph) destroyed them in December 2020 because she “wanted to get married to [her] fiancé”.

[52]The latter explanation was a nonsense: the photographs were in the possession of the claimant only, and even if they were taken without her fiancé knowing that they were being taken, they showed only what the fiancé already knew about the claimant, which was that she had had pre-marital sex with him.

[53]Thus, her having the photographs was not going to deter him from marrying her.

[54]It was possible that the nonsensical claimed justification set out in paragraph 51.4 above for destroying the mobile telephone was the cause of the assertion made for the first time in oral evidence given to me on 9 January 2023 (which I have recorded in paragraph 44 above) that the claimant had destroyed the telephone because “if my fiancé had withdrawn from getting married or I had, he could have leaked those photos”. That, however, contradicted the claimed justification set out in paragraph 51.4 above.

[55]In addition, the claimant at first said (see paragraphs 42 and 43 above) that she had destroyed the telephone after she was made redundant, and then said that it was before she was made redundant.

[56]The claimant’s evidence about her use of her second mobile telephone (namely that she had stopped using it after October 2018, as I record in paragraph 33.4 above) was contradicted by what she wrote to Lyca on 9 November 2022 as set out in paragraph 37 above, namely: “I used to have a Lyca mobile number between 2018 and 2022”.

[57]Similarly, if the claimant had in fact thrown the mobile telephone into the river at Hayes in December 2020 with the SIM card in it (as she said to me on 31 October 2022 as recorded in paragraph 33.1 above) then it was at the very least surprising that she said on 9 November 2022 in that email to Lyca that she had “a Lyca mobile number between 2018 and 2022”.

[58]On 9 December 2022, the claimant said (see paragraph 9 set out in paragraph 40 above) that “Since all parties had copies of the note book and recording, I did not think I would need to keep the original notebook which contained very sensitive and traumatic material relating to the events that took place during my employment with the Respondent, nor did I think that I needed to keep the phone.” That was the first time that the claimant gave any indication that she had given any thought to the possibility that the telephone might be material evidence which might need to be retained. My factual findings relating to the claimant’s notebook and mobile telephone

[59]I concluded that the claimant did not destroy the notebook or the telephone in December 2020. In coming to that conclusion I took into account the factor to which I refer in paragraphs 74 and 75 below, but that factor was, as I say there, of only marginal relevance. The above inconsistencies in the claimant’s evidence and its objective implausibility were in themselves a sufficient basis for concluding, as I did, that(1) whatever were the claimant’s abilities in regard to understanding and speaking the English language, she understood fully what was being sought by the respondents by way of inspection from June 2021 onwards and that the respondents were pressing for such inspection, and

(2) if she had destroyed those things in December 2020 then she would not have stood by and let the respondents press their applications for the inspection of those things and her counsel respond to those applications on the basis that those things were still available. I therefore concluded on the balance of probabilities (despite the gravity of the factual issue) that she did not say that they were bound to be fruitless because they were not bound to be. Those applications were not bound to be fruitless because (I concluded as a factual finding) the notebook and telephone were still in existence at least until October 2022.

[60]If, however, that was not the case, then the claimant consciously permitted the respondents to press for the inspection of the mobile telephone and the notebook, and to spend much time and money in doing so, despite knowing that the applications were bound to be fruitless. That, if it had occurred, would have been unreasonable and vexatious conduct on the claimant’s part.

[61]However, I concluded that if the claimant had actually destroyed the notebook and the mobile telephone, then she did so only after receiving the record of EJ Tobin at pages 136-140 to which I refer in paragraphs 27 and 28 above, which was (see paragraph 28 above) at the latest on 27 October 2022. That, I concluded, was the first time that the claimant realised that there was a real chance that the tribunal might order the re-inspection of the notebook and the inspection of the mobile telephone. Therefore, I concluded, the claimant told a deliberate untruth either about the date of their destruction, or about the fact of their destruction. Thus, either the claimant destroyed the notebook and the mobile telephone in October 2022 in the knowledge that there was a real chance that their inspection might be ordered, or she lied about the fact of their destruction. Whichever of those two things she did, it was designed to prevent an order for the inspection of the mobile telephone or the notebook being made or, if it was made, having any effect.

[62]The fact that at the time of the telling of that deliberate untruth or that destruction, the claimant knew that the notebook and the telephone might be disclosed, suggested strongly that the claimant knew that if the respondents obtained the expert evidence about those things then the respondents would find something which(1) would justify an application to the original tribunal to reconsider its findings on liability and

(2) would at the very least undermine the claimant’s evidence about the effects on her of the acts of the respondents which the original tribunal had concluded had occurred and which had not been overturned on appeal. The applicable case law

[63]In paragraphs 4 and 5 of his judgment in Blockbuster Entertainment Ltd v James

[2006] IRLR 630

, Sedley LJ said this. “4 Rule 18(7) in Schedule 1 to the Employment Tribunals (Constitution and Rules etc) Regulations 2004 provides: ‘Subject to para. (6) [which requires notice to be given], a chairman or tribunal may make a judgment or order – ... (c) striking out any claim ... on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant ... has been scandalous, unreasonable or vexatious.’ 5 This power, as the employment tribunal reminded itself, is a draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge

[2000] 2 BCLC 167

and of the EAT in De Keyser v Wilson

[2001] IRLR 324

, Bolch v Chipman

[2004] IRLR 140

and Weir Valves v Armitage

[2004] ICR 371

, but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal.”

[64]In Emuemukoro v 1) Croma Vigilant (Scotland) Ltd

[2022] ICR 327

, Choudhury P referred to that passage and, in paragraph 10, said this: “It is quite clear from that passage, and is not in dispute before me, that the two conditions for the exercise of the power are in the alternative, such that either condition being satisfied would trigger the exercise of the power to strike out. At paras 18-21 the Court of Appeal dealt with proportionality”.

[65]Choudhury P then set out paragraphs 18-21 of the judgment in Blockbuster Entertainment Limited v James. Those paragraphs were directed at the situation of that case, which was rather different from that which was in issue here. In James the case of the claimant was struck out for failures to comply with orders and attendance at the start of the 6-day trial with (as it was said in the headnote) “some 50 to 60 pages of documents which he wished to rely on but which had not been copied for use by the tribunal or served on the employers [and] one copy of his and his witnesses’ signed statements which included amendments to the statements previously provided to the employers”.

[66]In Arrow Nominees v Blackledge

[2001] BCC 591

, a party who was petitioning the court for an order winding up a company under section 459 of the Companies Act 1985 on the basis that there had been unfair prejudice within the meaning of that section, deliberately forged some documents. In the headnote, at 591H, the situation was described very pithily thus: “On discovery [the party, Mr Nigel Tobias] disclosed certain documents which turned out to have been forged by him. On that ground the respondents to the petition applied to strike it out as an abuse of process.”

[67]In the High Court, Evans-Lombe J declined to strike out the claim. The report at [2000] CP Rep 59 was in the authorities bundle before me on 9 and 10 January 2023, and that contained in its headnote this further pithy description of what happened in the High Court: “The judge, dismissing the application, found that, while T had been fraudulent in respect of the forged evidence, a fair trial was still possible. At the trial of the action, further evidence was submitted as to T's fraudulent conduct and a renewed application was made to strike out the petition. The judge dismissed this second application on the basis that the petitioners had still made out a case for relief under the petition, and there was no substantial risk that a fair trial could not be held. The respondents appealed.”

[68]The Court of Appeal allowed an appeal against that refusal to strike out the petition. The appeal was heard by Roch, Ward and Chadwick LJJ. Reasoned judgments were given only by Ward and Chadwick LJJ. Roch LJ agreed with both of those judgments.

[69]In paragraphs 24-29 of his judgment, at 630C-632C, Chadwick LJ described rather more fully the manner in which Mr Tobias had falsified documents. In paragraphs 54-56 of his judgment, at 640E-641D, Chadwick LJ said this. “54. ... I adopt, as a general principle, the observations of Mr Justice Millett in Logicrose Ltd v Southend United Football Club Limited (The Times, 5 March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules – even if such disobedience amounts to contempt for or defiance of the court – if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant’s conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled – indeed, I would hold bound – to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court’s function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke. 55. Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself. That, as it seems to me, is what happened in the present case. The trial was ‘hijacked’ by the need to investigate what documents were false and what documents had been destroyed. The need to do that arose from the facts(i) that the petitioners had sought to rely on documents which Nigel Tobias had forged with the object of frustrating a fair trial and

(ii) that, as the judge found, Nigel Tobias was unwilling to make a frank disclosure of the extent of his fraudulent conduct, but persisted in his attempts to deceive. The result was that the petitioners’ case occupied far more of the court’s time than was necessary for the purpose of deciding the real points in issue on the petition. That was unfair to the Blackledge respondents; and it was unfair to other litigants who needed to have their disputes tried by the court. 56. In my view, having heard and disbelieved the evidence of Nigel Tobias as to the extent of his fraudulent conduct, and having reached the conclusion (as he did) that Nigel Tobias was persisting in his object of frustrating a fair trial, the judge ought to have considered whether it was fair to the respondents – and in the interests of the administration of justice generally – to allow the trial to continue. If he had considered that question, then – as it seems to me – he should have come to the conclusion that it must be answered in the negative. A decision to stop the trial in those circumstances is not based on the court’s desire (or any perceived need) to punish the party concerned; rather, it is a proper and necessary response where a party has shown that his object is not to have the fair trial which it is the court’s function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise.”

[70]The judgment of Ward LJ was to the same effect. However, what Ward LJ said in paragraphs 72-75 at

[2001] BCC 591

, at 645H-647C, added to that analysis of Chadwick LJ. “72. When exercising any power under the [Civil Procedure Rules], the court must, by virtue of r. 1.2 , seek to give effect to the overriding objective. The overriding objective in its rightful place at the forefront of the rules is in these terms: ‘1.1(1) These Rules are a new procedural code with the overriding objective of enabling the courts to deal with cases justly. (2) Dealing with a case justly includes, so far as is practicable–(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate– (I) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issue; (iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court’s resources while taking into account the need to allot resources to other cases.’ It is not at all clear to me to what extent, if at all, the judge had the overriding objective in mind as setting out the parameters for the exercise of his discretion. He correctly saw at the beginning of his judgment that the source of his power to strike out lay in r. 3.4 but he did not trace back through the case management rules to r. 1.1. Even though this was a reserved judgment it may still be unfair to the judge to engage in too close a textual analysis of his judgment and infer from the omission of express reference to the overriding objective that he did not direct himself to it. Consequently I prefer to assume he had it in mind. Nevertheless, there is still every indication that he regarded the risk of a fair trial not being possible as the factor of crucial, even overriding, weight. It undoubtedly is a factor of very considerable weight. It may often be determinative. If the court is satisfied that the failure to disclose a document or the effect of a tampered document can no longer corrupt the course of the trial, then it would be a factor of much less and perhaps even little weight in considering a strike out. Where, in my judgment, Evans-Lombe J erred, was to treat the question of a fair trial as the only material factor. It was not: other matters have now to be put in the scales and weighed.

[73]The attempted perversion of justice is the very antithesis of parties coming before the court on an equal footing. The matter has become hugely more expensive (to an extent we did not appreciate until we were told when application was made for a freezing order that the amount of the appellant’s costs overall and on a solicitor and own client basis may be in the region of £1.5 million.) The judge commented at the beginning of his judgment that ‘the hearing has run for twenty nine days greatly exceeding the parties’ estimate.’ The original estimate was three weeks and we were told another week to ten days would be required to conclude the matter even on the limited basis that the judge would still permit. The judge did not, however, treat cost and time as elements of the overriding objective. He did not appear to allot to the case an appropriate share of the court’s resources while taking into account the need to allot resources to other cases. In this day and age they are elements of case management which must not only be seen to have been placed in the scales but also given due and proper weight when assessing how justice is to be done to the parties and to other litigants. The balance must be struck so that the case is dealt with in a way which is proportionate to the amount of money involved in the case, its importance and complexity and the financial position of the parties. Mr Tobias stood to gain much had his fraud gone undetected. He was seeking on behalf of the minority shareholders to wrest control of the company from the majority and he persisted in that claim even to the point of his cross appeal. He bolstered his claim by what the judge found to be a ‘campaign of forgery’ and, more importantly, the judge was not satisfied with the explanation given for it. He found (para. 51): ‘In his evidence Nigel sought to give the impression that his forgeries came about as a result of an impulsive moment of madness flowing from his disappointment that his case was not adequately supported by the documents. In my judgment, so far from that being the case, it is apparent that the process of forgery, which Nigel admitted to, was sophisticated and must have taken some time to complete including the special manufacture of headed note paper of the defunct Tobias family company. But for the slip up with relation to the telephone number shown on the headings it would, in all probability, not have been discovered.’ Any notion that this was a petitioner coming to the Court of Equity with clean hands is utterly dispelled by the devastating conclusion in para. 44: ‘I am not satisfied that I have received from Nigel a truthful picture of the circumstances of the forgeries which he admits.’

[74]This was, therefore, a flagrant and continuing affront to the court. Striking out is not a disproportionate remedy for such an abuse, even when the petitioners lose so much of the fruits of their labour.

[75]Even if the judge were correct in his analysis that all effect of the 1994 agreement could be excised from the petition and a prima facie case could be made out of what remained, I am quite clear that, if the CPR [i.e. the Civil Procedure Rules] are to receive a correct start, then this court must make the clear statement that deception of this scale and magnitude will result in a party’s forfeiting his right to continue to be heard.” 71 The overriding objective in rule 2 of the 2013 Rules is in slightly different terms from those of rule 1.1 of the Civil Procedure Rules as they stood at the time of the determination of the Arrow Nominees case. Rule 2 is in these terms. “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” 72 Ms McKie in oral submissions suggested that it was open to me under rule 37 of the 2013 Rules to strike out the whole of the claim, thereby in effect revoking the liability judgment. As I said at the time, that was a novel proposition, but one which I was willing to consider carefully. Having done so, I concluded that rule 37 does not permit the striking out of a judgment which has already been given. In my judgment, the revocation of such a judgment could be done only on a reconsideration under rules 70-73 of the 2013 Rules. 73 When reviewing the law after the hearing had ended, I searched the White Book for references to the Arrow Nominees case, and for any cases in which it had been relied on in striking out a claim or a defence. I could find nothing of any significance in that regard. If nothing else, that showed that the outcome in Arrow Nominees was exceptional. A discussion about the impact on the fairness of the proceedings of the claimant’s conduct 74 One thing about which I have said relatively little so far in these reasons is the email from Atlas of 6 January 2022 which I have set out in paragraph 19 above. In paragraph 12(d) of Ms Chan’s skeleton argument, she said this: ‘Insofar as R may be suggesting that C or her advisers tried to alter the translations provided by Atlas in its instructions, this is completely denied and an irrelevant issue, for the reasons set out in paras 4-5 of C’s 3rd statement dated 9.12.22 (235). Importantly, when a dispute arose over the translation produced by translation company Atlas, the ET instructed the parties to jointly instruct a translator which was duly done with “Aplomb” providing jointly agreed translations prior to the liability hearing. The Aplomb translator also gave witness evidence regarding the translation. The Atlas translations were therefore ultimately not used by the ET, so it is difficult to see what the Respondents seek to achieve by seeking the privileged instructions between C and Atlas.’ 75 I could not accept that submission. The email of 6 January 2022 records in terms that (1) Atlas was asked by or on behalf of the claimant to consider amendments to the translation and (2) the original translation was revised in the light of the claimant’s requests. The fact that the original translation included some highly damaging things which the independent translator concluded were not said, was relevant, if only by way of background. It was certainly not correct to say that it was untrue “that C or her advisers tried to alter the translations provided by Atlas in its instructions”. The fact that the independent expert concluded that the statements asserted by the claimant to have been made by the second respondent that (1) the claimant was a prostitute and (2) he (the second respondent) would kill her were not made, did not in any way detract from, or diminish the importance of, the fact that those things were originally asserted to have been said, and that they were asserted on the basis of a translation which had been amended after requests had been made by or on behalf of the claimant. However, that conduct of the claimant was relevant here only if and to the extent that I could lawfully take it into account. In my view, that conduct was only relevant at this stage to the claimant’s credibility. It was in my view of only marginal relevance.

[76]In paragraph 12(e) of her skeleton argument, Ms Chan said this: “Neither the notebook or mobile phone recording of Lord Ranger has any obvious relevance to the issues of remedy.”

[77]However, there is at least a possibility that things said by or on behalf of a respondent which were harassing within the meaning of section 26(1) of the Equality Act 2010 could properly (i.e. lawfully) be held to have had less of an impact on the claimant’s feelings if they were said in response to deliberate provocation by the claimant than if they were not said in response to such provocation. There is some, limited, authority for that proposition. I referred the parties to it during the hearing on 10 January 2023. That is the decision of the EAT in Snowball v Gardner Merchant Ltd

[1987] ICR 719

. That factor was relevant to an analysis of the impact of the claimant’s refusal to make available, or her deliberate destruction of, the mobile telephone.

[78]In addition, and more importantly, if there was anything which had been(1) written in the notebook and then removed from it, or

(2) written in it after the event with a view to bolstering the claimant’s case about the impact on her feelings and/or her mental health of the things that the original tribunal concluded had in fact been said or done by the relevant respondents, then that would be of considerable importance in determining the level of the compensation which the claimant should receive.

[79]However, the fact that the recording of the telephone conversation of 5 October 2018 was made on a second mobile telephone was not at all material. In addition, the fact that the recording was not a complete recording was known by the respondents long before the liability hearing, and the respondents could have asked to inspect the mobile telephone (whichever one it was) on which the claimant had recorded the conversation long before that hearing, but did not do so. However, there was no ostensibly good practical or legal reason why the respondents should not have had an opportunity to inspect the telephone, i.e. now, for the first time.

[80]Similarly, it could be said that (as I indicated during the hearing of 9 and 10 January 2023 by saying that one might say that “the ship had sailed”) it would not be fair to the claimant to raise again the issue of the provenance of the notebook and to look into the possibilities that(1) it had been tampered with and

(2) entries in it were falsified. Against that, however, it could be said (as I also pointed out during that hearing) that (1) the claimant’s failure to disclose the notebook before the liability hearing was in breach of the orders which (see paragraph 4 above) I had made on 24 April 2020, and (2) the fact that the respondents did not seek to adjourn the hearing in order to obtain expert evidence in relation to the notebook had to be seen against the background of the fact that they had not had a fair opportunity at that time (since they were not informed until the middle of the claimant’s evidence of the existence of the notebook) to find out whether or not there was such evidence available. In addition, all that was sought in regard to the notebook was another opportunity to inspect it. In the circumstances to which I refer in paragraph 78 above, it was difficult to see on what basis an order for the further inspection of the notebook could reasonably be opposed. My conclusions

[81]My factual findings set out in paragraph 61 above were of conduct which was in my judgment plainly scandalous, unreasonable, and vexatious within the meaning of rule 37(1)(b) of the 2013 Rules. That is to say, that conduct was not just one or more of those things: it was all of them.

[82]The circumstances of this case were exceptional. Striking out the remedy claim would be a draconian step, especially since the claimant had partially succeeded on liability. Plainly, I had what one might be called a discretion here, but(a) if there was such a discretion then it had to be exercised judicially, and

(b) it was probably better to say that I had to determine as a matter of judgment what the just result was.

[83]In making that determination or applying that discretion, I had to decide whether it was “no longer possible to have a fair hearing in respect of the” claim to a remedy, although that was not itself a conclusive factor. I came to the conclusion that it was not so possible. That was for the following reasons.83.1 It was by no means a fanciful possibility that the claimant had in fact recorded the whole of the conversation of 5 October 2018 and deliberately disclosed only part of it. Thus her refusal to permit inspection of the device on which the recording was made so that the possibility could be assessed by an expert, stood in the way of the doing of justice to the respondents in that it meant that the tribunal could make no meaningful order for the inspection by the respondents of the telephone.

83.2 Even though the respondents had failed to take the opportunity to seek an adjournment of the liability hearing in order to obtain an expert examination of the notebook, the claimant’s late disclosure of the notebook had put the respondents in a difficult position and the notebook was now going to be of significant evidential weight in the determination of the impact on the claimant’s feelings and mental health of the unlawful conduct which the original tribunal had concluded had occurred. Precluding an inspection of the notebook so that the copies of it which were in existence had to be taken by the respondents (and therefore the tribunal) at face value had the result in my judgment that a fair hearing of the remedy claim was no longer possible. That was for the following reasons.83.2.1 Even though the respondents had already had an opportunity to inspect the notebook, that was under the enormous pressure of time in the liability hearing.

83.2.2 The claimant should have disclosed the notebook before the liability hearing.

83.2.3 There was no practical reason why the claimant should not have made it available again.

83.2.4 Even though it was by no means clear that an expert examination of the notebook would have revealed something of value to the respondents, they had now been precluded from obtaining such an examination when, for the reasons recorded in paragraph 4.61 of the liability judgment (set out in paragraph 10 above), there was good reason to think that such an examination might well have been fruitful as far as the respondents were concerned.

83.2.5 The suspicion that it would have been so fruitful was enhanced by the factor to which I refer in paragraph 62 above.

[84]When standing back and asking myself against the background of those findings and determinations whether it was proportionate and appropriate to strike out the remedy claim, I took into account the fact that the respondents had had an opportunity before the liability hearing to inspect the mobile telephone and during the liability hearing could have asked for an adjournment to ask an expert to inspect the notebook but chose not to do either of those things. In addition, the original tribunal had already come to a conclusion on the reliability of the entries in the notebook. Those were powerful factors which weighed quite heavily against the striking out of the remedy claim. However, those factors were in my judgment significantly outweighed by the claimant’s conduct as described in paragraph 61 above.

[85]That conduct was in my judgment inimical to the doing of justice in that it was designed to frustrate the doing of justice. Even if the claimant panicked and there was nothing which an inspection of the notebook or the mobile telephone could have revealed which would have weakened her case in regard to remedy or justified a reconsideration of the liability judgment (and whether or not that was the case was of course not capable of being known now), her deliberate destruction of those things, or lying in saying that she had destroyed them, was intended to prevent the respondents and the tribunal from considering further material which could have affected the outcome of the proceedings in a significant way.

[86]In all of the above circumstances, I concluded that it was at least possible that I was bound by reason of that conduct to do something similar to that which the Court of Appeal did in the Arrow Nominees case, and, for the reasons stated in the judgments of Chadwick and Ward LJJ, which I have set out in paragraphs 69 and 70 above, strike out the claimant’s claim to a remedy. However, if and to the extent that I was not so bound, I came to the clear conclusion that the only just result would be that the claimant’s claim for a remedy was struck out on the basis that her conduct described in paragraph 61 above was scandalous, unreasonable and vexatious within the meaning of rule 37(1)(b), not least because it was plainly designed to stop any further inquiry by the respondents into the reliability of evidence which was relevant to the claimant’s claim for a remedy.

[87]In addition, and separately, for the reasons stated in paragraph 83 above, I was of the view that it was no longer possible to have a fair hearing of the claim for a remedy.

[88]For those reasons, the claimant’s claim to a remedy is struck out.