Discrimination

Claimants have a three-month time limit to bring most discrimination claims, although the employment tribunal can exercise its discretion to allow a claim to be brought late if it considers it just and equitable to do so. 

However, what about a situation where an applicant does not learn key facts essential to their discrimination claim until after their three-month time limit has expired, should a tribunal exercise its discretion to allow the claim to proceed late on just and equitable grounds? When does a rejected job applicant have the necessary information to identify a discrimination claim and is the fact the claimant ‘suspects’ they have been discriminated against a relevant consideration?

The Court of Appeal has recently, separately, considered these issues in two remarkably similar cases involving discrimination claims brought late by unsuccessful job applicants. However, the decisions leave unresolved questions about the relevance of the claimant’s ‘suspicion’ that they have been discriminated against.

The Chevalier-Firescu decision

In HSBC Bank Pc -v- Chevalier-Firescu [2024] EWCA Civ 1550, an investment banker (CF) brought a discrimination claim against a bank arising from an unsuccessful job application. At the time of her job application, CF had recently been made redundant from another bank and there were outstanding discrimination claims arising from that employment. CF underwent several stages of the recruitment process, before learning that her application had been unsuccessful. CF suspected that she had not been appointed because someone at her former employer had given her a bad reference, but a data subject access request (DSAR) failed to reveal any negative reference. Around two years later, unexpectedly, CF received a further batch of data in response to her DSAR which had been ‘missed’ in the bank’s earlier search. This data allegedly revealed that a senior manager within the bank had intervened in CF’s recruitment process (because he had become aware of her discrimination claims against her former employer) with the result that she was not appointed. CF brought discrimination claims against the bank, but the tribunal ruled these had been brought too late and it was not just and equitable for it to extend time. The EAT upheld CF’s appeal, holding that the tribunal had erred in its approach. 

The Court of Appeal dismissed the bank’s subsequent appeal. The tribunal had erred in its approach when it failed to make factual findings which explained the basis on which it had concluded that CF knew all the “essential elements” of her claim when her job application failed, or to consider the fact that CF had only learned of key information supporting her claims two years’ later when she received further disclosures as a result of her earlier DSAR. The Court held that CF’s claims should be remitted to a different tribunal to consider whether or not it should exercise its discretion to extend the time on just and equitable grounds.

The Jones decision

In Jones -v- Secretary of State for Health and Social Care [2024] EWCA Civ 1568, a Black job applicant (J) brought race and age discrimination claims, following a recruitment exercise in which he was unsuccessful. The employment tribunal held that J had brough his claim too late (on the basis that J’s three-month time limit began to run from the decision not to appoint him, which was around six months earlier, rather than from when he had been informed that he had not been appointed to the role). The tribunal also held that it was not just and equitable to extend time, and dismissed J’s claim on its merits, holding that a hypothetical white candidate would have scored the same as J had within the recruitment process. The EAT subsequently upheld the tribunal’s decision, but the Court of Appeal upheld J’s appeal. 

A factual analysis of what J knew, and when, revealed that: 

• Although J had repeatedly chased for an outcome of the recruitment exercise over several months, the prospective employer did not tell J that another candidate had been appointed until two days after his primary three-month limitation period had already expired (based on when the decision not to appoint J had been taken).

• After being informed he had not been successful in his job application, J had requested information about the protected characteristics of the successful candidate, but the prospective employer had  refused to provide this information (citing data protection reasons).

• J had only been informed that the successful candidate was white around a year later, when the tribunal had ordered the employer to reveal the ethnicity of the appointed candidate.

Against that factual backdrop, the Court of Appeal held that the tribunal had been wrong to hold that J had the “raw materials” on which to formulate his discrimination claim shortly after he had been told he had not been appointed and had delayed too long in bringing his claim. Whilst J had been told that he had not got the job, that was not enough in itself to justify him issuing discrimination proceedings. Nor was the three-month delay in PHE notifying him of the outcome of its recruitment exercise enough to justify him doing so. 

The tribunal had also been wrong to hold the fact J had taken time to try to obtain details of the ethnicity of the successful candidate against him. The employer had gone to “great lengths” not to disclose the ethnicity of the successful candidate until it was required to do so by the tribunal. The ethnicity of the successful candidate was an essential part of J’s discrimination claim and the fact this was withheld was a “highly relevant” factor that the tribunal ought to have considered when exploring why J’s claim was brought late. Further, there was no actual (as opposed to hypothetical) prejudice suffered by the employer from the delay. J’s case will now return to the EAT to consider the outstanding grounds of appeal.

Is the claimant’s ‘suspicion’ that they have been discriminated against a relevant factor?

The relevance of the claimant’s ‘suspicion’ (and any subsequent delay after they form that suspicion) derived from an earlier EAT decision in which it was suggested this was a relevant factor when determining whether to allow a late discrimination claim to proceed  (Barnes -v- The Commissioner of The Metropolis Independent Police Complaints Commission [2005] UKEAT 0474_05_1411).

In Chevalier-Firescu, in a concurring judgment, Underhill J held that whether a claimant’s ‘suspicion’ (as opposed to knowledge) is sufficient is not a black-or-white question; there is a broad spectrum between knowledge certain enough to bring a claim and mere speculation. It might be reasonable to expect a claimant to bring proceedings where their knowledge of the material facts or availability of the evidence is less than certain, but whether it is reasonable for them to do so will partly depend on the degree of the uncertainty. The EAT in Barnes had correctly identified that it was relevant to consider the extent and basis of a claimant’s suspicion and whether it was reasonable of them to delay bringing proceedings.

Conversely, the Court of Appeal in Jones disapproved of the EAT’s decision in Barnes on this point. The Court was not persuaded that a mere ‘suspicion’ (or even a firmly held belief based on suspicion) was a relevant factor when exercising the just and equitable discretion. Workers should not be encouraged to bring claims based merely on ‘suspicion’ and, to the extent it suggested otherwise, Barnes was wrongly decided. The tribunal had therefore wrongly placed emphasis on the fact J was already ‘suspicious’ that he had suffered discrimination. 

It is difficult to reconcile the Court’s conflicting decisions on the relevance of ‘suspicion’. Chevalier-Firescu suggests claimants may be penalised for delaying too long once they ‘suspect’ they have a potential discrimination claim, whereas Jones suggests claimants should not bring claims based on mere ‘suspicion’. One or other proposition must be incorrect. Neither judgment refers to the other and, as they both carry equal judicial weight, it seems likely that we will need to await a Supreme Court decision on the relevance of a claimant’s ‘suspicion’ that they have suffered discrimination. It is also notable that neither judgment refers to the potential cost implications claimants can face if they bring a claim with no reasonable prospects of success based on nothing more than ‘suspicion’ or a ‘hunch’.