Labour & European Law Review Weekly Issue 297 29 November 2012
Tribunals have the power to strike out a claim if they consider it has no prospect of success. In Timbo v Greenwich Council for Racial Equality, however, the Employment Appeal Tribunal (EAT) said that tribunals cannot do so half way through a hearing but instead must hear all the evidence and then evaluate the claim on its merits.
Ms Timbo, a qualified lawyer, started work as an equalities officer at the end of January 2009, subject to a probationary period. Soon after she joined, her line manager resigned following allegations of fraud. A report by an external consultant identified a number of governance issues with the way the organisation was being run.
In June 2009, two of the executive committee members complained about her work and in July, she was told that her probationary period would be extended for three months although her manager had told the executive committee in May that she had completed it.
Ms Timbo submitted two grievances on 31 July and 18 August, having been suspended by her manager in the interim. She was told on 29 July that her manager had also submitted a grievance about her conduct. She was dismissed on 2 September and her appeal against dismissal was rejected on 7 October. She brought claims for race and sex discrimination.
On the third day of a four-day hearing, the Council made an application to strike out Ms Timbo’s claim on the basis that it was misconceived and there was no chance she could establish facts from which the tribunal could infer discrimination.
The tribunal said that to a substantial extent Ms Timbo’s case depended on her credibility, particularly as there was no supporting documentation for a number of the issues she had raised. As it found her credibility to be flawed to the point where it would not be able to rely on her evidence at all, it reserved its judgement and agreed to the application.
Ms Timbo appealed on the basis that it was not open to the tribunal to dismiss her case in the way that it had.
And the EAT agreed, saying that the tribunal should have heard all the evidence and then evaluated the case on its merits.
It was one thing, said the EAT, to reach a provisional view half way through the proceedings that a witness’s evidence was unsatisfactory and that it was unlikely to be accepted if there was evidence to the contrary. It was quite another (and an error of law) to reach a “concluded view” that it should be rejected in its entirety even if there was no evidence to contradict it and in circumstances where, as here, there was independent evidence that the respondent (the employer) was not beyond reproach.
It pointed out that tribunals often come across claimants who think that their employer has been guilty of unlawful discrimination and “attribute all manner of problems and reversals at work to unlawful discrimination. When such a claimant gives evidence some of the matters about which they complain appear to bear no relationship to sex or race discrimination: they appear to be innocuous; or justified conduct toward the employee; or even the product of bad management or administration unrelated to any question of sex or race.
“By half time such an employee’s credibility may be severely dented. It is nevertheless the usual practice of tribunals to hear all the evidence and determine such cases on their merits to see whether there is any underlying truth in the allegations. This is the correct and appropriate course where there is a crucial core of disputed fact which is not susceptible of determination except by hearing and evaluating evidence”.
The EAT remitted the case for rehearing before a differently constituted tribunal.
This is an important decision for claimants. Those who perceive they have been discriminated against are often upset and, for this reason, as the EAT observed, see discrimination in every act. The fact that they do so does not mean there has been no discrimination which is why it is so important for tribunals to hear the entirety of the evidence so they can form a view on the whole picture.