News

17/12/2024

The Court of Appeal hands down judgment in the case of HSBC Bank plc v Chevalier-Firescu

News, Employment & discrimination

On 11 December 2024, the Court of Appeal gave judgment in the case of HSBC Bank plc v Chevalier-Firescu [2024] EWCA Civ 1550, unanimously dismissing the employer’s appeal. Oliver Segal KC of Old Square Chambers and Elaine Banton of 7BR acted for Ms Chevalier-Firescu, instructed by Kilgannon and Partners LLP.

The appeal arose out of the decision of the Employment Tribunal (‘ET’) to strike out Ms Chevalier-Firescu’s claims of race and sex discrimination and victimisation, on the basis that they were out of time. It had refused to exercise its discretion to extend time for bringing those claims, because it decided that it was not “just and equitable” to do so under s.123(1)(b) EqA 2010.

BACKGROUND

In summary:

• In early 2018, HSBC had sought to recruit to a senior position in the bank. Ms Chevalier-Firescu applied for the role. The hiring manager was Mr Dutruit.
• Ms Chevalier-Firescu had previously worked for Barclays but had been made redundant during maternity leave and then brought tribunal claims against the bank and her former manager Mr Fares, including a claim of sex discrimination.
• Mr Dutruit told the Claimant that he wanted to appoint her, but reversed course in June 2018 and told her that she could not be appointed. She was not appointed. She had heard during the recruitment process that HSBC had received negative feedback from Barclays, which she attributed to Mr Fares.
• In October 2018, she made a data subject access request (‘DSAR’) for data held on her by HSBC relating to the recruitment process. She received nothing significant. She brought a further victimisation claim against Barclays for obstructing her appointment to HSBC but took no action against HSBC itself.
• In June 2020, HSBC’s GDPR department sent her internal emails from May-July 2018 relating to the recruitment process, which it acknowledged should have been sent to her in October or November 2018.
• Those documents, a further meeting with Mr Dutruit on 29 September 2020, and documents sent to her in October 2020 after a further DSAR, indicated to Ms Chevalier-Firescu that a senior manager at HSBC, Mr Bourette, had spoken to her “former boss” at Barclays (she inferred that this was Mr Fares) during the recruitment process in 2018. The “former boss” had made disparaging comments about Ms Chevalier-Firescu (including sexist tropes) which Mr Bourette had then allegedly fed into the recruitment process. Mr Bourette and Mr Fares were both Lebanese, as were other senior managers at HSBC, and Mr Dutruit had allegedly commented on the difficulties this might cause during their September meeting.
• Ms Chevalier-Firescu presented her tribunal claims against HSBC on 1 November 2020, over two years out of time. It was common ground that her claims were out of time. The question for the ET was whether it was “just and equitable” to extend time for bringing those claims under s.123(1)(b) EqA 2010.
• The ET decided not to exercise its discretion to extend time, and consequently struck out Ms Chevalier-Firescu’s claims. Its findings and reasoning are summarised by Laing LJ at 64-66 of the Court of Appeal’s judgment.
• The Employment Appeal Tribunal (‘EAT’) allowed Ms Chevalier-Firescu’s appeal, on grounds set out at 67 of the Court of Appeal’s judgment. The employer appealed to the Court of Appeal, principally on ‘perversity’ grounds, as well as on the basis that the EAT had been unduly critical of the ET’s refusal to extend time (§72).

THE COURT OF APPEAL’S JUDGMENT

Laing LJ gave the lead judgment of the Court of Appeal, with Underhill and King LJJ concurring. There was unanimous agreement about the EAT’s identification of an error of principle in the first-instance judge’s approach and broad agreement that HHJ Tucker had been wrong to make a finding of ‘perversity’ although slightly different glosses were applied to that issue between the lead judgment (at §81) and the concurring judgments (at §88 and §106), with King LJ agreeing with Underhill LJ’s view on the essential error. Underhill LJ felt unable to go quite as far in his criticism of the first instance judge as Laing LJ had gone (see §107, cf. §82), albeit Laing LJ herself also accepted that many of the criticisms made of the Tribunal by the EAT had been unwarranted. However, while the formal issue on appeal was whether the EAT had erred in law, the real question on appeal was whether the ET erred.

The central issue for the purposes of s.123(1)(b) EqA 2010 was the question of whether and when Ms Chevalier-Firescu had formed the requisite knowledge that she had an arguable discrimination or victimisation claim for her non-appointment by HSBC in 2018, such that time could be extended until three months from when she had that knowledge – an approach approved in Southwark London Borough Council v Afolabi [2003] ICR 800, CA.

Ms Chevalier-Firescu said was that she did not know that she had an arguable claim before the summer of 2020, and that difficult personal circumstances had meant that she still did not bring the claims in time even once she had that knowledge. Against that background, it was incumbent on the ET to make findings about what she knew and when she knew it, to consider to what extent her personal circumstances had got in the way of her presenting a claim, and to set out those findings and explain why it nevertheless had reached the conclusion that time should not be extended.

The Court of Appeal held unanimously that the ET had failed to give adequate reasons for its decision which satisfied the well-known test for sufficiency of reasons in Meek v Birmingham District Council [1987] IRLR 250, CA, in that:

• It did not explain the basis on which it had concluded that she knew the essential elements of her claim against HSBC in 2018, or what she knew and when.
• It did not deal with her race discrimination claim at all or explain its interpretation of the nature of that claim, and how that related to the time limits issue, if at all.

It dismissed the employer’s appeal and remitted Ms Chevalier-Firescu’s claims to a different ET to consider whether time should be extended under s.123(1)(b) EqA 2010.

Postscript

A few days after this judgment was handed down, on 13 December 2024, a differently constituted bench of Court of Appeal gave judgment in Jones v Secretary of State for Health Care [2024] EWCA Civ 1568 (Bean, Baker, Nicola Davies LJJ). Whether those judgments really conflict in their application of s.123(1)(b) EqA 2010 test in cases where a claimant applies to extend time on the basis that they were previously unaware of facts material to the viability of their claim, may be a question with which practitioners and the appellate courts grapple in future.

The Jones EAT judgment was considered by the Court of Appeal in this appeal, with Underhill LJ approving of and applying the formula of HHJ Richardson in the unreported decision of Barnes v Metropolitan Police Commissioner UKEAT/0474/05: what was the extent of the claimant’s knowledge or “grounds for suspicion” of facts which would found a valid claim? Underhill LJ accepted that identifying a person’s ‘suspicion’ was an imprecise standard denoting something between mere speculation and certain knowledge but was in any event only a starting point within a broader factual inquiry.

In the Jones judgment, the Court of Appeal doubted that Barnes lay down a formula to be applied by tribunals at all, given that the case was unreported and not even referred to in the current version of Harvey on Industrial Relations and Employment Law. However, it held that, if it did, it should not be followed, because ‘suspicion’ should not be a relevant factor in the application of the “just and equitable” test under s.123(1)(b) EqA 2010, essentially for policy reasons (including the abolition of the statutory questionnaire procedure from 2014).

The full judgment can be read here.