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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Timbo v Greenwich Council For Racial Equality (Sex Discrimination) [2012] UKEAT 0160_12_0210 (2 October 2012)
URL: http://www.bailii.org/uk/cases/UKEAT/2012/0160_12_0210.html
Cite as: [2012] UKEAT 0160_12_0210, [2013] ICR D7, [2012] UKEAT 160_12_210
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At the Tribunal
Judgment handed down on 2 October 2012
Before
HIS HONOUR JUDGE DAVID RICHARDSON
MR B R GIBBS
MR M WORTHINGTON
GREENWICH COUNCIL FOR RACIAL EQUALITY RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(Representative) |
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(of Counsel) Instructed by: Levenes Solicitors Cromwell House 14 Fulwood Place London WC1V 6HZ |
SUMMARY
SEX DISCRIMINATION
On the third day of the hearing, at the close of the Claimant’s case, the Respondent applied to strike out the claim. The Tribunal reserved judgment and acceded to the application, which it described as an application to dismiss the claim on the grounds that there was no case to answer. It recognised that to a substantial extent the Claimant’s case depended on her credibility. It found her credibility to be flawed to the point where it would not be able to rely on her evidence at all. Held: the Tribunal erred in law in acceding to the application. Anyanwu v South Bank Student Union [2001] ICR 391, Eszias v North Glamorgan NHS Trust [2007] ICR 1126 and Williams v Real Care Agency [2012] UKEATS/0051/12 applied. Cases concerning applications to dismiss at the close of the Claimant’s case also considered.
HIS HONOUR JUDGE DAVID RICHARDSON
1. This is an appeal by Ms Rubie Timbo (“the Claimant”) against a judgment of the Employment Tribunal sitting in London South (Employment Judge Martin presiding) dated 4 July 2011. By its judgment the Tribunal dismissed claims of race and sex discrimination brought by her against the Greenwich Council for Rights and Equality (“the Respondent”).
2. The Tribunal had embarked upon the full hearing of the Claimant’s discrimination claims, which had been listed for 4 days. The Claimant’s case concluded at 11.10 on the third day, by which time the Tribunal had also read the Respondent’s witness statements in anticipation of starting the Respondent’s case. However, the Respondent applied to strike out the claim on the basis that it was misconceived. The Tribunal reserved judgment on the application. Eventually it delivered a reserved judgment dismissing the claim. The sole question upon which this appeal proceeds is whether it was correct in law to do so.
The background facts
3. The Claimant – a qualified lawyer - was employed by the Respondent as an Equalities Officer with particular responsibility for “BME Older People”. Its name was then the Greenwich Race Equality Council. Her employment commenced on 28 January 2009. Her appointment was expressed to be subject to a probationary period. Initially her line manager – and the person in day to day control – was Mr Bajwa. He resigned on 31 March 2009. We were told by Mr Isaacs that he has subsequently been found to have committed fraud against the Respondent.
4. In April 2009 a report by Dr Allan McNaught proposed changes to the Respondent’s organisation and management. Dr McNaught said that local race equality councils had tended to be troubled organisations with a poor record of governance. He set out a list of problematic features, including that they tended to be male dominated and to fail to embrace youth and female issues as well as broader diversity concerns created by new communities. He said that “without undertaking a detailed post mortem” many of those features applied to the situation of the Respondent. He made recommendations, including the appointment of a new chief executive officer by August 2009. In fact, as Mr Isaacs told us, this recommendation was never carried out: the funding for the Respondent was withdrawn soon after the events with which we are concerned.
5. Following the resignation of Mr Bajwa, Mr Ekinu and Mr Barrah, the Respondent’s most senior employees, jointly took over. On 26 May 2009 Mr Ekinu reported to the Respondent’s executive committee that the Claimant had completed her probationary period. According to the minute it was agreed that Mr Jalli and Mr Sumal would liaise to supervise her work.
6. From June 2009 onwards, if not before, problems began to emerge. On about 8 June 2009 Mr Saib, said by the Claimant to be an executive committee member, wrote to her complaining about the way she had dealt with a case of his, saying that “you are not a capable person to look after the clients as you don’t keep your word”. On 8 July 2009 Mr Singh, said by the Claimant to be another executive committee member, is alleged by her to have come to her office and complained to her, saying that he had been in the organisation for more than 30 years, that she had to go, and that the organisation was for “our people”. On 14 July 2009 the earlier report to the executive committee was corrected: it was said that the Claimant’s probationary period would end 6 months after she began work. She was told that Mr Ekinu and Mr Barrah would be her line managers.
7. On 23 July 2009 the Claimant was called to a meeting with Mr Ekinu. She was told that her probationary period would be extended for 3 months because she had not met all the requirements of her role. There is no doubt that the Claimant was upset to be told this. She asked to see her file. On 3 August she inspected her file. No evidence relating to the probationary period was found on it. She submitted grievances on 31 July and 18 August.
8. On 4 August, however, she was suspended by Mr Ekinu. She was told that on 29 July Mr Ekinu had himself submitted a grievance concerning her conduct and that her suspension was pending investigation into his grievance. She says that the charges were in effect a response to her complaints. A disciplinary hearing took place on 25 August. On 2 September the Claimant was summarily dismissed. On 7 October her appeal against dismissal was rejected.
The Tribunal hearing
9. The Claimant brought proceedings for race and sex discrimination. Her claim form is narrative in nature. Considering that she is a qualified lawyer, her preparation was not impressive. She failed to attend two case management discussions. Her claim form did not define her complaints with any precision. It was, however, examined at a pre-hearing review on 8 December 2010. The Respondent’s applications for a striking out order and a deposit order were refused on the basis that it could not be said that her case had no or little reasonable prospect of success.
10. The Tribunal ordered sequential exchange of witness statements. The Claimant produced a reasonably detailed witness statement and brought a list of issues to the hearing.
11. With some refinement, which the Tribunal explained in its reasons, the hearing proceeded on the list of issues which the Claimant provided: the Tribunal annexed it to the reasons it gave. There were approximately 20 issues, some more specific than others. So the Tribunal had a substantial amount of material to cover. It had allowed 4 days for the hearing.
12. During the second day the Respondent’s counsel informed the Tribunal that he would make what the Tribunal described as a submission of no case to answer. The Tribunal adjourned early that day because the Claimant was feeling unwell. On the third day the Respondent’s counsel made his application. It was avowedly an application to strike out the claim on the basis that it was misconceived.
13. He put forward two grounds for the application.
14. Firstly, he argued that the Claimant’s case was a case of dual discrimination on the basis of sex and race. He submitted that prior to the Equality Act 2010 the law did not make provision for dual discrimination – hence the Claimant’s case was bound to fail.
15. Secondly, he argued that this was a rare case where the Tribunal should “exercise its discretion” to strike out the Claimant’s case because the Claimant’s evidence could not be accepted on any significant issue and there was no prospect of the Claimant being able to establish primary facts from which the Tribunal could infer discrimination.
The Tribunal’s reasons
16. The Tribunal did not deal with counsel’s first submission. It upheld his second submission, describing it as a submission of no case to answer, and dismissing the claim rather than striking it out. The Tribunal’s reasoning may be summarised as follows.
17. Firstly, the Tribunal stated that the test which it applied was that set out in Eszias v North Glamorgan NHS Trust [2007] ICR 1126. It quoted part of the judgment of Kay LJ in that case, to which we will return later in this judgment.
18. Secondly, the Tribunal dealt with a number of issues where it considered that the claim could not succeed for one or more of the following reasons: (1) contemporaneous documents did not lend any support to the Claimant’s claim of discrimination, (2) the Claimant made significant concessions during the evidence, or (3) the Claimant’s reasons, given in cross examination, for saying that the treatment in question was on prohibited grounds did not stand up to scrutiny. The Tribunal, in deciding these issues, does not appear to have relied on any finding about the Claimant’s credibility as a witness of fact – rather it rejected her arguments and perceptions.
19. It will suffice to cite one example of the Tribunal’s reasoning – concerning Mr Saib’s letter in June 2009. The Claimant had said in her witness statement that the derogatory remarks were unwanted and “overtly racist”. She said that Mr Saib would not have written this about other (Asian) employees of the Respondent, whom she named.
20. The Tribunal dealt with this in the following way.
“74. The Tribunal’s conclusion is that quite clearly this letter is not overtly racist as the Claimant suggests. Clearly, Mr Saib is complaining about the Claimant because he does not believe he has received good service from her. However this falls far short of being overtly racist or racist in any way whatsoever. This issue is therefore struck out.”
21. Thirdly, however, the Tribunal found that there were a number of issues which depended on findings about credibility: these the Tribunal identified as issues 4 to 8, 11, 14, 18, 19 and 22.
22. The Tribunal made a finding adverse to the Claimant’s credibility. It is not necessary to set out all its reasoning. It will suffice to set out paragraphs 95, 100 and 102.
“95. The Tribunal has above dealt with issues that can be dismissed on the face of the evidence given by the Claimant and the documentary evidence alone. This leaves issues numbered 4, 5, 6, 7, 8, 11, 14, 18, 19 and 22. These matters, involved disputed fact for which there is no supporting documentation. In these circumstances the credibility of the witnesses is of crucial importance. The Tribunal has therefore made its finding as to the credibility of the Claimant. Quite clearly from the matters discussed above, the Claimant has put an interpretation on events which quite simply is not there and is demonstrably incorrect in the light of the documentary evidence. The Claimant used inflammatory language in her claim form, witness statement and evidence such as “molestation”, “subjugation”, “suppressive techniques” which when questioned about what she meant, the Claimant meant harassment.
100. The Claimant alleges that the Respondent colluded to force her out of the organisation and this was because of her race or sex or more particularly because she was an African woman. However, if that was the case, the obvious route for the Respondent would have been to simply not confirm her in her position at the end of her probationary period and terminated her employment at that stage. However it chose not to do so and decided to extend her probationary period above and beyond that which was necessary, having decided that the work that she had done for the organisation was in the main good, so that she could show that she could do the other areas on her job description that she had not done by that time. This is not indicative of a racist or sexist attitude on the part of the Respondent.
102. Taking all these matters into account, the Tribunal finds that the credibility of the Claimant is fatally flawed. Given that the matters which the Tribunal has not already struck out depend on the Tribunal’s finding of the credibility of the Claimant, the Tribunal finds that the Claimant’s evidence cannot be relied on and that she has therefore can not prove facts from which the Tribunal could conclude that she had been discriminated against on the grounds of sex or race. Accordingly, the burden of proof has not shifted to the Respondent and the Tribunal does not look to the Respondent for any explanation. On this basis, the Claimant’s claim is dismissed in its entirety.”
23. It is necessary to describe briefly some of the issues which the Tribunal said were dependent on credibility. These issues included the following. She alleged that some members of management switched in her presence to speak in languages which she could not speak, effectively holding “pocket meetings” in front of her in which she could not take part. She alleged that she was singled out for public humiliation in front of Asian clients on 6 July 2009. She alleged that Mr Ekinu’s secretary made derogatory remarks about Africans and was hostile towards her. She alleged that an Asian, Mr Singh, went into her office and made an unprovoked attack on her which she regarded as racial in nature – and that despite her complaints this incident was not investigated or reported to the police.
Submissions
24. The Claimant was represented before us by Mr Harry. He submitted that it was not open to the Tribunal to dismiss her case as it did, when to a significant extent it depended on disputed fact. He argued that the Tribunal should have heard evidence on both sides, especially where the allegations related to sensitive matters such as race and sex discrimination. He submitted that such a case should not be struck out.
25. On behalf of the Respondent Mr Isaacs took us through the modern cases on the question of dismissing a claim on the basis of no case to answer and on the question of striking out. He submitted that this was a truly exceptional case because the Tribunal had found the Claimant’s evidence so fundamentally flawed that no reliance could be placed on it. He submitted that the Tribunal was entitled to reach the conclusion that this was an exceptional case; that it committed no error of law in reaching that conclusion. While the pre-hearing review had declined to strike the claim out, he submitted that the Tribunal, having heard one side of the evidence, was in a fundamentally different and better position than it would have been prior to the hearing. It was, he submitted, entitled to take the course which it took.
26. Mr Harry and Mr Isaacs took us to cases on the question of striking out and submissions of no case to answer with particular reference to the approach to be taken in Tribunals.
27. On the question of striking out generally we were referred to Anyanwu v South Bank Student Union [2001] ICR 391 and Ezsias v North Glamorgan NHS Trust [2007] ICR 1126.
28. On the more specific question of striking out, or holding that there is no case to answer, during an employment tribunal hearing we were referred to Oxford v Department of Health and Social Security [1977] ICR 884, Dhariwal v London Borough of Greenwich [2000] EAT/276/96, Wlordarczyk v Shell Pensions Management Services and others [2003] EAT/0330/03, Logan v Commissioners of Customs & Excise [2004] ICR 1, Wiggan v RN Wooler & Co [2007] EAT/0542/06, Rodrigues v Co-operative Group Ltd [2012] UKEATS/0022/12 and Williams v Real Care Agency [2012] UKEATS/0051/12.
29. Mr Isaacs recognised that the recent decision in Williams, to which we shall come later in this judgment, placed difficulty in the way of his argument. He submitted however that it laid down no new principle of law; that it had been decided without reference to case such as Dhaliwal, Wlordarzyk and Rodrigues upon which he relied; and that it was distinguishable, since it concerned section 98(4) of the Employment Rights Act 1996, where there was no burden of proof on the claimant and since the respondent’s evidence might well have assisted the claimant.
30. Mr Isaacs briefly renewed the argument which had been his first line of attack before the Tribunal – namely, that the Claimant’s case was a case of dual discrimination which could not succeed prior to the coming into force of the Equality Act 2010.
Discussion and conclusions
31. Although the Tribunal described the application before it as being an application that there was no case to answer, it was in truth an application to strike out the claim on the grounds that the claim was misconceived. The application was expressly made under rule 18(7)(b) of the Employment Tribunal Rules of Procedure (Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004) which provides that a Tribunal may strike out a claim which has no reasonable prospects of success. This is why Mr Isaacs referred the Tribunal to Ezsias; and why the Tribunal stated that it sought to apply Ezsias.
32. On the question of striking out in discrimination cases, it is convenient to begin with Anyanwu. Lord Steyn said:
“For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of process except in the most obvious and plainest cases. Discrimination cases are generally fact sensitive and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of the claim being examined on the merits or de-merits of its particular facts is a matter of high public interest.”
33. Lord Hope of Craighead added at paragraph 37:
“I would have been reluctant to strike out these claims on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to leave evidence.”
34. In the light of this approach, Mr Isaac’s first argument before the Tribunal – that the case should be struck out because it involved dual discrimination – was truly hopeless. Whether there was discrimination, whether that discrimination was “dual” in the sense which Mr Isaac suggested, and whether the legislation prior to the Equality Act 2010 allowed for such discrimination are matters to be determined after the evidence is heard: it is highly undesirable that an application to strike out should be made on some hypothetical basis when a difficult issue of discrimination law may (or may not) be raised after the case is heard and findings made. In fairness to Mr Isaac, he renewed this argument before us only briefly. The Tribunal did not decide the case upon it.
35. We turn next to Ezsias. This was not a case concerned with an application during the hearing, but it gives important general guidance on the question of striking out in discrimination and whistleblowing cases.
36. On the question of striking out Maurice Kay LJ said:
“25. It is only since 2001 that the Employment Tribunal Rules of Procedure have included "no reasonable prospect of success" as an express ground for striking out. Until then applications which had no prospect of success were struck out on the ground that they were "frivolous"; ET Malla Limited v Robertson [1974] ICR 72. In Ballamoody v Central Nursing Council [2002] ICR 646 the distinction was drawn between "no prospect of success", and "no reasonable prospect of success". Ward LJ observing at paragraph 46 that the latter prescribes a lower standard as a basis for striking out.
‘However where the facts themselves are in issue in my judgment it can only be in the most extreme case that the chairman can say that without any evidence being tested in cross-examination that the disputed facts would inevitably or almost inevitably be resolved against the claimant.’
And a little later:
‘Mr Pitt-Payne submits that it must in principle be possible for a tribunal in a clear case to make a finding that a claimant has no chance of establishing the facts alleged. I would not discount the possibility that very exceptionally it might be. But it seems to me that at the very least if such a step is going to be taken then the primary factual basis on which a tribunal infers that the dismissal must have been for the reason advanced by the employer and not the counter varying reason advanced by the employee must itself be undisputed.’
27. I too accept that there may be cases which embrace disputed facts but which nevertheless may justify striking out on the basis of their having no reasonable prospect of success -- see ED&F Mann Liquid Products Limited v Patel [2003] EWCA Civ 472 at paragraph 10 per Potter LJ; a commercial rather than an employment case. However, what is important is the particular nature and scope of the factual dispute in question. In the present case it is stark. Mr Ezsias is contending that others turned on him because he was a whistleblower. The Trust says that he was impossible to work with and that he unreasonably jeopardised the proper functioning of the hospital. What was it that caused the chair of the Employment Tribunal to consider that that head-on conflict of fact could be resolved without a trial to the point of a conclusion that Mr Ezsias's case has no reasonable prospect of success? Although in the document of 20 July 2005 she purported to identify some legal points, these effectively fell away in the September reasoning and Mr Pitt-Payne does not seek to rely upon them. In the September reasoning she based her decision on "the letter from all your nine colleagues and the statements they made" concluding that "any reasonable tribunal" would on that basis decide that Mr Ezsias was dismissed not because he had made protective disclosures but because of an irretrievable breakdown of relationships for which he was responsible.
29. It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the Employment Tribunal to decide otherwise. In essence that is was Elias J held. I do not consider that he put an unwarranted gloss on the words "no reasonable prospect of success". It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level.”
37. Maurice Kay LJ stressed the added importance of applying these principles in “whistleblowing” and discrimination cases. In doing so he made express reference to the decision of the House of Lords in Anyanwu.
38. Ezsias was not a case where the application to strike out was made during the course of the hearing. Williams v Real Care Estate Agency was, however, just such a case. The claimant was dismissed for falsely overstating the hours she had worked. She alleged that this was a widespread practice, condoned by the employer. Her case was struck out part-way through her evidence; and one reason the Tribunal gave was the view it had formed of her credibility. The Appeal Tribunal allowed her appeal.
39. In giving the judgment of the Appeal Tribunal Langstaff P said the following:
“19. The power, as we have already indicated, is one which by the design of the rules is intended to have its principal use at a pre‑hearing stage. It is easy to understand why that is. The power, properly used, is an aid, as we see it, to justice. It permits a Tribunal to look at the particular factual allegations made in an ET1; having done so, it may see that the facts could not on any view give rise to an entitlement to the relief claim. In such a case it would not be inappropriate to give notice that the claim might be struck out. Such a process permits the Claimant to say that there are further facts, if that be the case, that might cast a different light upon matters, but otherwise it saves time, it saves the resources of the Tribunal, it saves costs, and it deals with matters in a manner proportionate to the importance to the parties, for the case to be struck out there and then without, on this scenario, going to the unnecessary, expensive, and, for a Respondent, if it be the claim that be struck out, disturbing, process of appearing before a Tribunal.
40. Later he continued:
“21. In this case the Claimant was part way through giving her answers in cross‑examination. Although ultimately it is for a Tribunal to judge, we see no reason why in a case of this nature the simpler and undoubtedly better course would not have been simply to allow the cross‑examination to proceed and the Claimant then to call what witnesses she wished so that the Tribunal had the full picture. Just as it is emphasised that some claims are generally not appropriate to strike out, such as those claims that raise serious issues of discrimination even at an initial stage, so it must be recognised that it would be very exceptional indeed, to the point of the instances of it being vanishingly small, that a claim could ever legitimately be struck out mid‑hearing on the grounds of evidential insubstantiability. Not to allow the appeal here might be seen as indicating a view that it is open to a Tribunal to strike out a claim at any stage of the proceedings mid‑hearing upon the ground that there is no reasonable prospect of success. Only to posit that possibility is to envisage a scenario in which litigants may forever be looking for an opportunity to indicate that their case is so exceptional that the power should in this case be used. It runs a real risk that Tribunals will have their attention diverted from deciding the facts as they are to having to determine the facts as they might be. It runs counter to the overriding objective that it is the purpose of rule 18(7) to serve, because it is likely to cost time, cost money, cost resources and cause inconvenience to the parties that simply getting on and hearing the case avoids, and, perhaps most importantly, it risks the sense that litigants might have that they have been wrongly shut out from telling their story in a public forum because the court at some stage mid‑hearing refuses to hear any more. It is no part of justice, blind as it must be, also to be deaf to a selective part of the evidence.”
41. On the question of credibility, he said:
“23. There is nothing to prevent a Tribunal beginning to form views of any witness as and when they give evidence. There is nothing wrong in those views being strong. There is, in our view, an error if a Tribunal reaches a conclusion expressed in absolute terms, as this Tribunal so expressed it, that nothing could change the view it had even though it had not yet finally heard all the evidence ..”
42. We have cited at some length from Ezsias and Williams because they are directly apposite to the striking-out application which the Respondent made to the Tribunal.
43. We think, however, that the position is fundamentally the same even if the application is characterised (as the Tribunal sought to do) as an application that there was no case to answer. Such an application has been said to be appropriate only in exceptional or frivolous cases: see Logan v Customs and Excise Commissioners at paragraphs 18-19, approving and applying a judgment of His Honour Judge Peter Clark in Clark v Watford Borough Council [unrep, 4 May 2000]. As Underhill J said in Wiggan “the difference of label makes no difference to the substantive question” (paragraph 5). Wiggan indeed contains, in paragraph 4 of the judgment, a summary of the main reasons why it is “normally a bad idea” (paragraph 5) to seek to dismiss the case at half time.
44. Contrary to the submission which Mr Isaacs has made to us, we do not think that the reasoning in Williams can or should be restricted to unfair dismissal cases. It is of general application.
45. Nor do we think that anything in Williams is cast into doubt by the decisions (all unreported) in Dhaliwal, Wlordarzyk and Rodrigues. In particular, we would point out that Wlordarzyk was a case in which the Tribunal heard all the main witnesses for the respondent before reaching conclusions of fact: it did not accede to a submission of no case to answer, still less an application to strike out. Rodrigues was an unusual case where the hearing of a preliminary issue required the Tribunal to hear evidence on both sides and reach conclusions of fact which effectively determined the remainder of the case.
46. Against this discussion of the principles, we turn back to the present appeal. In our judgment the Tribunal erred in law in acceding to the application to strike out the claim.
47. The Tribunal correctly recognised that to a very significant extent the Claimant’s case depended on her credibility as a witness: it identified some 10 issues which it could not determine except by making a conclusive finding that it could never, in any circumstances, accept anything which she said about them. In our judgment it was inappropriate to make this judgment on a striking out application. Although the Tribunal stated that it was applying the guidance given in Ezsias, it did not do so. There was a crucial core of disputed facts which was not susceptible to determination otherwise than by hearing and evaluating the evidence. This being so, the Tribunal should not have acceded to a striking out application. It should have heard all the evidence and evaluated it.
48. It is one thing to reach, at the half time stage, a provisional view that a witness’s evidence is unsatisfactory and that it is unlikely to be accepted if there is evidence to the contrary. It is another thing altogether to reach a concluded view that a witness’s evidence must inevitably be rejected in its entirety even if there is no evidence to contradict it. It is an error of law to reason in this way on a striking out application made before all the evidence has been heard: see paragraph 23 of the judgment of Langstaff J in Williams, already quoted.
49. In this case we have no doubt that the Tribunal should have heard the evidence in full and determined the case in the light of all the evidence. We do not think that the Claimant’s case – in essence that she was treated differently by reason of her background (a woman, not Asian, not Ugandan) and sex could be described as inherently frivolous or incredible without hearing the evidence on both sides. The Respondent as an organisation was not beyond potential criticism on grounds relating to equality, as Dr McNaught’s report showed.
50. In truth, this was not a particularly unusual case: it was representative of a particular kind of case which tribunals hear. It is the common experience of tribunals that some claimants who perceive – rightly or wrongly – that their employer has been guilty of unlawful discrimination tend to attribute all manner of problems and reversals at work to unlawful discrimination. Once they suspect discrimination – rightly or wrongly – they tend to see it everywhere. 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.
51. We have two final observations to make concerning the hearing of an application to strike out during the hearing.
52. Mr Isaacs told us that he made the application to strike out at a time when he foresaw that the hearing might not be over in its allotted time. He rightly did not submit that this was a reason for entertaining the application. If anything, it is a reason why respondents should seldom make such an application; and if they do they should not expect to be heard on it at any length. At the time when the application was made there were nearly 2 days to deal with the remainder of the case, and the Tribunal had already read the statements of the Respondent’s witnesses. It would have been much better to time-table the remainder of the hearing and make progress. The Tribunal received a detailed skeleton argument from Mr Isaacs and seems to have heard him at some length in support of his application. We doubt whether it will ever be appropriate to do so. The type of case which is susceptible of an application to strike out during the course of the hearing should be so readily identifiable that the Tribunal will need only brief submissions on it from the party who makes it.
53. We would also add that – among the many other risks of entertaining and deciding a striking out application in the midst of the hearing – there is a danger of anticipating evidence which will only be deployed as part of the Respondent’s case. The Tribunal appears to have done this in paragraph 100 of its reasons. Its finding of fact as to the reason for extending the probationary period did not derive from the Claimant’s evidence. It seems to be the reason which Mr Ekinu gave: but the Claimant did not accept that reason, and Mr Ekinu had not given evidence. Before the Tribunal accepted his explanation the Claimant was entitled to question him about (for example) his apparent willingness to sanction the completion of the probationary period to the executive committee and the lack of any relevant material on her file from the persons who had been charged with supervising her.
54. We have concluded that the claim should not have been dismissed or struck out; that the appeal must be allowed; and that the matter must be remitted for rehearing before a differently constituted tribunal.