ET Wrong to Strike Out Discrimination Claims After Claimant’s Evidence

In Timbo v Greenwich Council for Racial Equality, the Employment Appeal Tribunal (EAT) ruled that the Employment Tribunal (ET) had erred in law in acceding to the respondent’s application to strike out the claimant’s discrimination claims part way through the hearing.



Ms Rubie Timbo brought claims of race and sex discrimination after she was dismissed from her job as an Equalities Officer working for what was then the Greenwich Council for Racial Equality. The ET allowed four days for the hearing as there was a substantial amount of material to cover. On the third day, the respondent made an application to strike out the claim on the basis that it was misconceived as there was no prospect of Ms Timbo being able to establish facts from which the ET could infer discrimination.



The ET described the application as ‘a submission of no case to answer’ and dismissed Ms Timbo’s claim. Some of the issues she had raised were dismissed because of lack of contemporaneous evidence or because her reasons did not stand up to scrutiny. The ET also found that her credibility was fatally flawed, which is of crucial importance when reaching a judgment on disputed facts for which there is no supporting documentation.



Ms Timbo appealed on the ground that the ET had erred in striking out her claim when it depended, to a significant extent, on disputed fact. She contended that in such cases, the ET should hear the evidence on both sides, especially where the allegations relate to sensitive matters such as race and sex discrimination.



The EAT carried out a review of the relevant case law and upheld the appeal. The case involved a ‘crucial core of disputed facts which was not susceptible to determination otherwise than by hearing and evaluating the evidence’. It was an error of law to decide that Ms Timbo’s evidence should be rejected in its entirety, even if there was no evidence to contradict it. Although claimants sometimes attribute all manner of workplace problems to unlawful discrimination, and their credibility, part way through the proceedings, may be severely dented, it is nevertheless the usual practice for the ET to hear all the evidence and to determine the case on its merits. This is the correct approach where crucial facts are disputed that can only be determined by hearing and evaluating the evidence.



The case should not have been dismissed or struck out and the matter was remitted for rehearing before a differently constituted ET.