HSBC Bank plc v Carmen Chevalier-Firescu

An Employment Tribunal exercising the discretion under section 123(1)(b) of the Equality Act 2010 must explain why justice and equity favour or disfavor an extension of time. The discretion is wide but judicial, and its exercise is not a checklist. Where late knowledge is relied on, the Tribunal must identify what the claimant knew or suspected about each material element of the claim, when, and whether later delay was reasonable. Knowledge of negative references, or knowledge sufficient to claim against the reference-giver, does not necessarily establish knowledge of a discrimination or victimisation claim against the prospective employer. The Tribunal must also address material personal circumstances. The appeal was dismissed because the ET had not adequately explained its conclusions.

HSBC appealed from the Employment Appeal Tribunal in case EA-2021-001181-NLD. The EAT had allowed Mrs Chevalier-Firescu’s appeal in part and remitted two aspects of her claims to the Employment Tribunal. The ET had held that her 2018 non-appointment claim was out of time, refused to extend time, treated later events as outside the scope of section 39 of the Equality Act 2010, struck out those allegations under rule 37, and dismissed all her claims.

The Court of Appeal considered whether the ET had adequately explained its refusal to extend time and its treatment of the race discrimination claim. It also considered whether the EAT had impermissibly interfered with the ET’s discretion or wrongly characterised the ET’s reasoning as perverse.

The appeal was dismissed unanimously. The Court’s provisional view, subject to further written submissions on relief, was that the claims should be remitted to a different Employment Tribunal.

1. Under section 123(1)(b) of the Equality Act 2010, the power to extend time is wide but must be exercised judicially and on legally relevant considerations. The Tribunal must decide which factors are most relevant in the particular case; the discretion is not a process of ticking boxes. The approach in [2003] EWCA Civ 15 made knowledge of an arguable case a useful benchmark, not a rule of law.
2. The ET did not adequately explain its conclusion that the claimant knew all the essential elements of her claims in 2018. Knowing that Barclays had provided negative references, and bringing claims against Barclays, did not necessarily establish knowledge or suspicion that HSBC itself had acted for discriminatory reasons or because of protected acts. The ET failed to make a clear sequence of findings about what the claimant knew, when she knew it, the number and significance of the references, and the material disclosed through the DSARs. It also failed to decide how her later personal circumstances affected the delay.
3. The ET’s duty to give intelligible reasons required sufficient findings and reasoning to enable appellate review, as described in [1987] IRLR 250.
4. The race claim admitted broad and narrow interpretations. The ET did not explain which interpretation it adopted, or whether the claim was out of time, should be extended, or fell outside section 39 of the Equality Act 2010. Reliance on an unagreed list of issues did not cure that deficiency.
5. The EAT correctly identified an error of principle in the ET’s reasoning, but its description of the ET’s conclusion as perverse required qualification. The issue remained open on remittal because the appellate courts lacked the full evidential record. Underhill LJ additionally observed, as a non-central point, that suspicion lies on a spectrum between certain knowledge and speculation, and that knowledge is only the starting point of the just-and-equitable enquiry.

1. Court of Appeal (Civil Division): In [2024] EWCA Civ 1550, HSBC’s appeal was dismissed. The Court held that the ET had not adequately explained its reasoning and expressed a provisional view that the claims be remitted to a different ET.
2. Employment Appeal Tribunal: In case EA-2021-001181-NLD, the claimant’s appeal was allowed in part. The EAT allowed four grounds and remitted two aspects of the case.
3. Employment Tribunal: The ET held that the 2018 non-appointment claim was out of time, refused an extension under the Equality Act 2010, treated later allegations as outside section 39, struck them out under rule 37, and dismissed all claims.