Timbo v Greenwich Council for Racial Equality

In discrimination proceedings, a claim should rarely be struck out where a crucial core of facts remains disputed and can be resolved only by hearing and evaluating evidence. This applies with particular force to an application made during the hearing. A tribunal may form a provisional view that a witness is unsatisfactory, but it errs in law if, before hearing all the evidence, it concludes that the witness’s evidence must inevitably be rejected in its entirety. A submission of no case to answer is subject to the same substantive safeguards, whatever its label. The proper course is ordinarily to hear the evidence on both sides and determine the claim on its merits.

The claimant brought race and sex discrimination claims arising from her employment by the respondent. During the third day of the four-day hearing, after the claimant had completed her case, the respondent applied to strike out the claim or dismiss it on the basis that there was no case to answer.

The tribunal accepted that several issues depended on the claimant’s credibility. It found her credibility fatally flawed and concluded that her evidence could not establish facts from which discrimination could be inferred. It dismissed the claim without hearing the respondent’s evidence. The central issue on appeal was whether that approach was lawful.

1. Appeal allowed. The tribunal had erred in law by dismissing or striking out the discrimination claims before hearing the evidence in full. The matter was remitted for rehearing before a differently constituted tribunal.
2. Although described as an application of no case to answer, the respondent’s application was in substance an application under rule 18(7)(b) of the Employment Tribunal Rules of Procedure, contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, on the ground that the claim had no reasonable prospects of success.
3. Discrimination claims are generally fact-sensitive. Following Anyanwu v South Bank Student Union [2001] ICR 391 and Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, strike-out is appropriate only in the most obvious or exceptional cases where disputed facts do not require a full evidential determination. A crucial core of disputed fact ordinarily cannot be resolved without hearing and evaluating the evidence.
4. The principle applies even more strongly to an application mid-hearing. The reasoning in Williams v Real Care Agency [2012] UKEATS/0051/12 was of general application and was not confined to unfair dismissal claims. A tribunal may form strong provisional views about credibility, but it must not reach an absolute conclusion that a witness’s evidence can never be accepted while evidence remains to be heard.
5. The tribunal also impermissibly anticipated the respondent’s evidence when it relied on an explanation for extending the claimant’s probationary period which had not yet been given in evidence and which the claimant disputed. Practical concerns about the hearing timetable did not justify determining the strike-out application at length. The claim was to be heard and decided on the full evidence.

• Employment Tribunal: The London South Employment Tribunal dismissed the claimant’s race and sex discrimination claims by judgment dated 4 July 2011.
• Employment Appeal Tribunal: The appeal was allowed. The dismissal was set aside and the matter was remitted for rehearing before a differently constituted tribunal.