We are delighted to have succeeded in an appeal against HSBC Bank PLC for the Claimant, Ms Chevalier-Firescu.

Elaine Banton and Gerard Airey succeed in the Employment Appeal Tribunal (EAT) against HSBC

Background

The Claimant was applying for work with HSBC over a significant period of time from April 2018 until around May 2021. In September 2018, she became aware that she had been unsuccessful for one role (GCB3 vacancy). She continued to seek employment with HSBC, but was not successful.

This, she claims, was due to information gained by HSBC from Barclays against whom she had previously sued for discrimination.

She believes that Barclays had impacted her job prospects with HSBC; she claims as a result of discrimination and because of her previous claim.

ET Claims

The Claimant launched two claims in the East London Employment Tribunal (ET) against HSBC.

Claim 1 was issued on 1 November 2020 for alleged race and sex discrimination and victimisation by a Manager, RB.

It was alleged that RB intervened in the recruitment process by giving negative feedback based upon information from the Claimant’s former boss at Barclays, who the Claimant had issued Tribunal proceedings against.

It was alleged that there was a failure to disclose key information relating to her primary allegation of sex discrimination regarding her recruitment in 2018.

The race discrimination claim was founded on the basis that the Claimant met with a Mr D on 29 September 2020 and he stated that the reason the Claimant was not recruited was because of feedback from “her old boss at Barclays” received by RB. The Claimant was also told that it may be more difficult to obtain future employment because of connections between Senior Managers in the Equality Derivates teams within HSBC, who knew her old boss, and who, like the Claimant’s old boss were of Lebanese origin.

Claim 2 was issued on 14 May 2021. The allegations being that due to ongoing sex discrimination and victimisation the Claimant wasn’t being recruited by HSBC and had been ‘blacklisted’ and that the Respondent had given poor, unfavourable, informal references about her within the City.

HSBC said that the Claimant was unsuccessful in the application at some point from April to mid-July 2018 and she engineered situations to meet with Senior Managers of HSBC to extract information to pursue litigation. There were no roles after July 2018, so she was not an applicant for employment.

There was an Open Preliminary Hearing (‘OPH’) to consider strike out of the first claim on 22 June 2021. The Claimant was represented by Counsel, but this went part heard and the Claimant ultimately had to represent herself when the hearing resumed on 7 September 2021.

In the OPH, Judge Burgher found that the Claimant was not an applicant, the claims were out of time and it wasn’t just and equitable to extend time. Both of the Claimant’s ET claims were struck out by Employment Judge Burgher, even though only the first claim was before the Tribunal in the OPH.

Elaine Banton and Gerard Airey were instructed following the strike out of the claims in order to pursue an appeal.

EAT

The Claimant appealed on 4 grounds:

Ground 1 – The Tribunal acted perversely or misdirected itself in law by striking out claim 2 because that was not before the Tribunal at the PH.

Ground 2 – The Tribunal erred and/or misdirected itself in law in its approach to the exercise of discretion to extend time on a just and equitable basis.

Ground 4 – The Tribunal acted perversely and/or misdirected itself in failing to separately adjudicate the race discrimination claim which was brought in time.

Ground 6(1) – The Tribunal erred or was perverse by finding the Claimant brought a claim against Barclays in June 2018 in respect to her non-appointment to the Respondent in July 2018.

The EAT upheld all 4 grounds of appeal.

It was held that there was no clarity on the scope of the issues to be determined as the notice of OPH related to the first claim only. There was a second PH listed for the second claim in November later that year. The Claimant was not given 14 days’ notice of the application to strike out the second claim during the first hearing process. It was a serious error to strike out the second claim, including the race claim, without giving notice of the application and allowing a reasonable opportunity for the Claimant to consider that application.

The EAT also held that the Judge impermissibly strayed into conducting a mini-trial of one of the primary issues in the case, which was the reason for non-promotion. The Judge didn’t recognise that disclosure hadn’t taken place in respect to the second claim; the first claim disclosure was limited; and he failed to apply the principles regarding the sensitive nature of discrimination claims. The Judge also failed to identify or evaluate the risk in determining whether to extend time without hearing all the evidence and failed to direct himself correctly.

The fact the Judge concluded that belated disclosure in August 2020 did not change what the Claimant was aware of in 2018 was properly described as perverse. It also wasn’t entirely accurate that the witnesses no longer worked for the Respondent.

The EAT also held that the Judge did not appear to take into consideration the fact that contrary to his statement that the DSARs were responded to in a timely manner, significant and relevant information was missing from the data disclosed, was only disclosed in June 2020, and still, some information has not been provided.

The EAT held that the Judge didn’t appear to consider the manner in which the Respondent had disclosed information, in terms of the impact on the Claimant’s ability to bring her claim, or whether the Respondent was continuing to withhold information which had made it more difficult for her to receive and consider information relevant to her potential claim.

Finally, the EAT accepted the submission that it was perverse of the Judge to find that the Claimant brought a claim against Barclays in June 2018 in respect to her non-appointment to the Respondent in July 2018.

The matter is now to be remitted to a differently constituted Tribunal to decide how next to proceed with the case.

Summary

This is an appeal of great interest. There is the procedural aspect that it wasn’t possible to strike out a claim that was not before the Tribunal without disclosure taking place and submissions to be permitted by the person at risk of strike out. There is also the point that the Judge was influenced by matters which could not or should not have been relevant to the exercise of the discretion to extend time. There were also two perversity findings here.

There had been concerns raised by the Claimant about disclosure throughout this process and this was something that the EAT appeared to appreciate. The Tribunal fell into conducting a mini-trial without all of the disclosure and this should be a reminder to Tribunals of the importance of not striking out discrimination claims at an early stage without very good cause. They do need to see the evidence in most cases.

This case will also be very important going forward to understand the process of job applications in the City and in banking and whether or not a form of blacklisting or blocking is effectively taking place. From an employer perspective consideration needs to seriously be given as to references being given about former employees without going through formal referencing processes.