Carmen Chevalier-Firescu v HSBC Bank PLC

An Employment Tribunal may determine potentially decisive issues at a preliminary hearing, including strike-out and limitation issues. It must, however, identify the claims and issues with clarity, give the required notice, and ensure a fair opportunity to address the consequences of its decisions.

In discrimination claims, a tribunal must remain alert to the risks of deciding fact-sensitive issues on partial evidence. When exercising the just and equitable discretion under section 123 of the Equality Act 2010, it must assess relevant prejudice and delay, including late disclosure affecting knowledge of a claim. It must not determine disputed merits through an impermissible mini-trial.

The claimant brought claims of sex and race discrimination and victimisation concerning her prospective recruitment by the respondent bank. Her first claim concerned events in 2018. Her second, issued shortly before the open preliminary hearing, alleged continuing discriminatory treatment, blacklisting and adverse informal references.

The Employment Tribunal struck out both claims. It held that, after July 2018, the claimant was not an applicant for employment within section 39 of the Equality Act 2010; that ruling was not under appeal. It also held that the earlier claims were out of time and declined a just and equitable extension.

The appeal concerned the striking out of the second claim, the limitation decision, the separate race discrimination complaint, and an erroneous finding about the claimant's earlier proceedings against Barclays.

1. Appeal allowed and claims remitted. The Tribunal committed a serious procedural error by striking out the second claim at an open preliminary hearing listed for the first claim. The second claim had its own later preliminary hearing date. The claims had not been consolidated, and the claimant had not received the mandatory notice required before the second claim could be struck out.

2. Although rule 37 permits strike-out at any stage, a tribunal deciding potentially determinative preliminary issues must clearly identify the claims, allegations and applications to be decided. It must then give the parties a fair opportunity to make focused submissions. These requirements are especially important where disclosure and relevant evidence have not been obtained.

3. The Tribunal also erred in refusing an extension under section 123 of the Equality Act 2010. Its discretion was broad, but it failed to identify and evaluate the claimant's significant prejudice if potentially meritorious claims could not be pursued. It also failed properly to address late and incomplete disclosure, which materially altered the claimant's knowledge of possible unlawful conduct by the respondent.

4. The Tribunal impermissibly strayed into a mini-trial of the reason for non-appointment. It made contested findings about recruitment approval and the significance of evidence without hearing from a relevant manager, despite limited disclosure and the fact-sensitive nature of discrimination claims. Its conclusion that the later disclosure did not change the claimant's knowledge was perverse.

5. The Tribunal further erred by failing separately to adjudicate the race discrimination claim arising from the meeting of 29 September 2020. The first claim, issued on 1 November 2020, was prima facie within three months of that alleged act. It also wrongly conflated proceedings against Barclays with a claim concerning the respondent's own alleged conduct.

6. All successful grounds were remitted to a differently constituted Employment Tribunal. The remitted tribunal must determine how and when to address the consequences of the unappealed section 39 ruling, limitation, and any strike-out applications.

• Employment Appeal Tribunal: allowed the claimant's appeal and remitted the relevant issues to a differently constituted Employment Tribunal: [2024] EAT 6.
• Employment Tribunal, East London: at an open preliminary hearing, struck out both claims and declined to extend time. The judgment and reasons were sent on 25 October 2021.