HSBC Bank plc v Carmen Chevalier-Firescu

The Court of Appeal dismissed HSBC's appeal from the Employment Appeal Tribunal. The central legal issue was whether the Employment Tribunal had given adequate reasons for refusing to extend time under section 123(1)(b) of the Equality Act 2010 and for striking out parts of the claimant's case, including the race claim. The court emphasised that the tribunal must make clear findings about what the claimant knew and when she knew it, particularly where the claimant relied on late disclosure (DSAR material) and on personal circumstances as reasons for delay. The court applied the principle in Southwark London Borough Council v Afolabi concerning extension of time until three months after knowledge of an "arguable case", and reiterated the requirement from Meek v Birmingham District Council that tribunals must explain the facts and reasoning sufficiently to allow appellate review.

Background and procedural posture:

• This was an appeal from an Employment Appeal Tribunal (EAT) decision allowing in part the claimant's appeal from an Employment Tribunal (ET) and remitting aspects of the case to the ET. Lewis LJ gave permission to appeal to the Court of Appeal.
• The underlying employment claims alleged victimisation (section 27 Equality Act 2010), direct sex and race discrimination (section 13 Equality Act 2010) arising from non-appointment to a role with HSBC in 2018 and subsequent events. Jurisdictional issues arose under section 39 and extension-of-time issues under section 123(1)(b) of the 2010 Act. The claimant relied in part on documents disclosed following Data Subject Access Requests (DSARs) in 2020.

Nature of relief sought and issues before the Court of Appeal:

• The appellant (HSBC) appealed the EAT's decision which had allowed parts of the claimant's appeal and remitted questions to the ET. The principal issues before the Court of Appeal were (i) whether the ET erred in law or failed to give adequate reasons when refusing to extend time for bringing the claims and when striking out parts of the claim, and (ii) whether the ET had failed to deal separately and adequately with the race discrimination complaint.

Court's reasoning and disposition:

• The Court of Appeal concentrated on whether the ET had properly explained why it refused to extend time. It held that the ET had not given sufficient findings about when the claimant knew the "elements" of her potential claims, and had not adequately addressed the claimant's case that material disclosed in 2020 by way of DSARs altered her knowledge as to HSBC's possible liability (including a potential role of an HSBC manager in passing on damaging feedback).
• The Court reiterated that the discretion under section 123 is wide but must be exercised judicially, taking legally relevant factors into account and excluding irrelevant ones; it referred to Afolabi as the useful benchmark of extending time until three months after a claimant knows she has an arguable case.
• The Court agreed with the EAT that the ET had failed to explain its conclusions and accordingly dismissed the appellant's appeal. The matter was remitted to a differently constituted Employment Tribunal to reconsider whether to extend time and to determine the race discrimination issue separately, making clear findings about the claimant's knowledge and personal circumstances.

Wider points: the judgment emphasised the ET's duty to explain reasons (Meek) and the importance of focused factual findings where late disclosure and questions of knowledge underpin a request for extension of time.

Appeal dismissed. The Court of Appeal held that the Employment Tribunal had not given adequate reasons when refusing to extend time and when striking out aspects of the claim (including the race claim) because it failed to make clear findings about what the claimant knew and when she knew it (notably in light of DSAR material disclosed in 2020). The Employment Appeal Tribunal was therefore correct to allow the claimant's appeal in part; the Court remitted the relevant issues to a differently constituted Employment Tribunal to decide whether it is just and equitable to extend time and to adjudicate separately on the race discrimination claim.

Appeal from the Employment Tribunal to the Employment Appeal Tribunal (HHJ Katherine Tucker, EA-2021-001181-NLD) which allowed the claimant's appeal in part and remittted two aspects of the case to the Employment Tribunal; permission to appeal to the Court of Appeal was granted by Lewis LJ; judgment of the Court of Appeal delivered [2024] EWCA Civ 1550 (appeal dismissed and remittal ordered).