HSBC Bank PLC v Chevalier-Firescu

Factual and Procedural Background

This opinion concerns an appeal by Company A from an order of the Employment Appeal Tribunal ("the EAT") that allowed the appeal of the Appellant in part and remitted aspects of her case to the Employment Tribunal ("the ET"). The Appellant brought claims against Company A alleging victimisation, sex discrimination, and race discrimination related to a recruitment process in 2018. She alleged that a senior manager at Company A interfered in the hiring process based on information from her former employer, Company B, and her former manager, which negatively affected her chances of employment. The Appellant contended that she only became aware of the full extent of the discriminatory and victimising acts in 2020 following delayed disclosure of documents through Data Subject Access Requests ("DSARs"). The ET found that the claims relating to the 2018 recruitment were out of time and refused to extend the time limit for bringing the claims. The EAT allowed the appeal, holding that the ET had erred in law in its reasoning, particularly concerning the extension of time and the race discrimination claim. Company A appealed to the higher court, which is the subject of this opinion.

Legal Issues Presented

1. Whether the Employment Tribunal properly explained its reasons for refusing to extend the time for bringing claims related to the 2018 recruitment process.
2. Whether the Employment Tribunal erred in striking out parts of the Appellant's claims as out of jurisdiction or without reasonable prospects of success.
3. Whether the Employment Tribunal erred in failing to adjudicate separately on the race discrimination claim.
4. Whether the Employment Appeal Tribunal correctly allowed the appeal on the above grounds.
5. The proper exercise of the Employment Tribunal's discretion under section 123 of the Equality Act 2010 to extend time for bringing discrimination claims.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that she did not know she had an arguable claim against Company A until 2020, following late disclosure of relevant documents via DSARs.
• She argued that the discriminatory and victimising acts constituted continuing acts extending beyond the initial recruitment process.
• She relied on the case of Southwark London Borough Council v Afolabi to support the proposition that time limits should be extended until the claimant knows they have an arguable case.
• The Appellant maintained that the Employment Tribunal failed to properly consider her personal circumstances, including difficult events in 2020, which affected her ability to bring claims promptly.
• She asserted that the Employment Tribunal did not adequately address the race discrimination claim separately and that the EAT was correct to remit that issue.

Company A's Arguments

• Company A argued that the Appellant was aware of the essential elements of her claims in 2018 and that the delay in bringing claims was not justified.
• It contended that the Employment Tribunal exercised its discretion judiciously and that the EAT’s finding of perversity was unwarranted.
• Company A submitted that the Appellant should have suspected or known of her claims earlier and that the late disclosure of documents in 2020 did not materially change her knowledge.
• It maintained that the claims after July 2018 were not within the jurisdiction of the Employment Tribunal as there was no continuing recruitment process.
• Company A also argued that the Employment Tribunal’s approach to the race discrimination claim was appropriate based on the unagreed list of issues and that the claim was out of time.

Table of Precedents Cited

Court's Reasoning and Analysis

The court focused on whether the Employment Tribunal adequately explained its decision to refuse an extension of time for the Appellant’s claims and to strike out certain claims as out of jurisdiction or without reasonable prospects. The court noted that the discretion to extend time under section 123(1)(b) of the Equality Act 2010 is wide but must be exercised judicially, considering legally relevant factors.

The court acknowledged that the Appellant argued she only became aware of the full basis of her claims in 2020 following delayed disclosure of documents. The Employment Tribunal had rejected this, concluding the Appellant was aware of the essential elements of her claims in 2018. However, the court found that the Employment Tribunal did not sufficiently explain its reasoning for concluding that the Appellant knew all relevant facts in 2018, particularly in relation to the involvement of the senior manager at Company A and the discriminatory and victimising nature of the feedback he provided.

The court identified several deficiencies in the Employment Tribunal’s reasoning: it failed to make clear findings on what the Appellant knew and when; it did not clarify the number or significance of negative references; it was unclear on the timing of the Appellant’s knowledge of non-appointment; and it did not reconcile inconsistent findings about DSAR disclosures.

The court further held that the Employment Tribunal improperly took into account irrelevant or marginally relevant factors, such as the potential prejudice to Company A and the Appellant’s personal circumstances without adequate explanation. The Employment Tribunal also failed to address the Appellant’s race discrimination claim separately and did not clarify its approach to that claim.

Applying established case law, including Southwark London Borough Council v Afolabi and Jones v Secretary of State for Health and Social Care, the court emphasized the importance of distinguishing between knowledge of the fact of non-appointment and knowledge of the reasons and actors responsible for it. It was also noted that suspicion of a claim can be sufficient to trigger the time limit, but the degree of suspicion and reasonableness must be assessed contextually.

Ultimately, the court agreed with the Employment Appeal Tribunal that the Employment Tribunal erred in law by failing to provide adequate reasons and by not properly exercising its discretion to extend time. However, the court did not fully endorse the EAT’s characterization of the Employment Tribunal’s decision as perverse, recognizing that the ultimate exercise of discretion remains for the tribunal on remittal.

Holding and Implications

The court DISMISSED the appeal by Company A.

The effect of this decision is that the Employment Tribunal’s judgment refusing to extend time and striking out parts of the Appellant’s claims is set aside, and the case is remitted to a different Employment Tribunal for reconsideration. The new tribunal must properly assess whether it is just and equitable to extend time for bringing the claims, with clear findings on what the Appellant knew and when, including consideration of her personal circumstances and the significance of the delayed disclosures.

No new legal precedent was established by this decision; rather, it reinforces the requirement for Employment Tribunals to provide clear and reasoned explanations when exercising discretion under section 123 of the Equality Act 2010 and to properly distinguish between knowledge of a claim’s existence and knowledge of its factual basis.