imbo v Greenwich Council for Rights and Equality
Ms Timbo was employed by Greenwich Council for Rights and Equality (GCRE) as an equalities officer.
Ms Timbo’s employment commenced in January 2009. Her probationary period was extended twice. She submitted grievances on 31 July and 18 August. She was suspended on 4 August and informed that her supervisor had submitted a grievance concerning her conduct.
Following a disciplinary hearing, Ms Timbo was summarily dismissed on 2 September. She brought claims of race and sex discrimination. Her claim form did not define her complaints with precision, but GCRE’s applications for a striking-out and deposit orders were refused at a pre-hearing review.
On the third day of a four-day hearing, GCRE’s counsel made an application to strike out the claim on the basis that it was misconceived because:
- Ms Timbo’s case was one of dual discrimination, which was not provided for by the pre-Equality Act 2010 law; and
- there was no prospect of Ms Timbo being able to establish primary facts from which the tribunal could infer discrimination.
The tribunal upheld the submission of “no case to answer” and dismissed the claim. The tribunal made a finding that Ms Timbo’s credibility was fatally flawed. She appealed to the EAT.
The EAT upheld the appeal. The EAT highlighted that it is important not to strike out discrimination cases as an abuse of process except in the most obvious cases. Discrimination issues should, as a general rule, be decided only after hearing the evidence. Whether or not there was discrimination is a matter to be determined after the evidence is heard. An application to strike out a claim is appropriate only in exceptional or frivolous cases.
The EAT noted that the tribunal had recognised that, to a very significant extent, Ms Timbo’s case depended on her credibility as a witness. The tribunal had identified 10 issues that it could not determine without making a conclusive finding that it could not accept Ms Timbo’s evidence on them. There was a crucial core of disputed facts that could not be determined other than by hearing and evaluating the evidence. The tribunal should have heard all the evidence.
The EAT remitted the case for rehearing in front of a different tribunal.
This case demonstrates that, despite the Government’s proposals to widen the powers of employment judges to manage weak claims at an early stage, ultimately in many cases the tribunal has no real option but to determine the issues at a full hearing.
Often, particularly in discrimination cases, a strike-out order will be appropriate only in a case in which, even if the claimant’s evidence was accepted in its entirety, it would not be sufficient to give rise to the cause of action claimed. Such cases will be rare.
The EAT noted in the judgment that this case is representative of the type of case often heard by tribunals, where a claimant perceives – rightly or wrongly – that his or her employer has been guilty of unlawful discrimination and attributes all manner of problems and reversals at work to unlawful discrimination.
When such a claimant gives evidence, many of the matters about which they complain may appear to bear no relationship to discrimination: they may appear innocuous; or justified conduct toward the employee; or even the product of bad management or administration unrelated to discrimination. In such a case, the employee’s credibility will be dented.
However, if there are disputed facts, the correct approach should be for tribunals to hear all the evidence and determine such cases on their merits, to see whether or not there is any underlying truth in the allegations.
Alan Chalmers, partner, DLA Piper
|Guidance from XpertHR on employment tribunals and striking out claims|