EAT Remits Carmen Chevalier-Firescu v HSBC Bank PLC Case Due to Procedural Errors

Citation: [2024] EAT 6
Judgment on

Introduction

In the case of Carmen Chevalier-Firescu v HSBC Bank PLC ([2024] EAT 6), the Employment Appeal Tribunal (EAT) was tasked with examining several procedural and legal issues emanating from an Employment Judge’s decision during an Open Preliminary Hearing (OPH). The critical question was whether the initial claims had been handled with due regard to the principles of fairness and justice as set out in the Employment Tribunal’s procedural rules and relevant discrimination law in the United Kingdom.

Key Facts

Carmen Chevalier-Firescu, the claimant, lodged two separate employment claims against HSBC Bank PLC, alleging instances of race and sex discrimination, victimisation, and wrongful non-recruitment. These incidents reportedly spanned between the years 2018 and 2021 based on her non-appointment to a banking position and alleged ongoing prejudicial conduct towards her. During the course of the OPH, the Employment Judge ruled to strike out the claimant’s case, primarily on the basis that for a period, she was not considered an applicant for employment within the meaning of s.39 of the Equality Act 2010 (EqA 2010), and for other periods, she was out of time in bringing her claims and it was not just and equitable to grant an extension.

The EAT’s analysis in the appeal leaned heavily on the following points of law:

  1. Striking out Claims: Utilizing Rule 37 of the Tribunal’s Rules of Procedure, the court reiterated the principle that claims may be struck out at any stage of the proceedings if they have no reasonable prospect of success, are scandalous or vexatious, or in circumstances where the claims have been presented out of time, and it is not just and equitable to extend the time.

  2. Conduct Extending Over Time: The interplay between s.123(1)(b) and s.123(3)(a) of the EqA 2010 provides that claims outside the primary time limits can be submitted within such other period as considered just and equitable. Conduct extending over a period is to be treated as occurring at the end of that period. Whether actions are sufficiently linked to constitute a continuing act is a matter of evaluating the substance of the complaint.

  3. Preliminary and Procedural Issues: When dealing with cases at OPH stages, it is critical for the Tribunal to identify with clarity which issues are to be decided to ensure parties have a fair and reasonable opportunity to make their case, as guided by Rules 53 and 54 of the ET Rules of Procedure 2013.

  4. Victimisation: s.27 of the EqA 2010 defines victimisation as subjecting a person to a detriment because they did or it is believed they will do a protected act. There must be a causal link between the negative treatment and the protected act.

  5. Role of Appellate Tribunal: Based on the principles set out in cases like Jafri v Lincoln College and Sinclair, Roche & Temperley v Heard, the EAT should be cautious in interfering with a Tribunal’s decision, especially on factual matters where multiple outcomes are possible, and it must respect the range of the Tribunal’s discretion.

Outcomes

The EAT found errors in how the Employment Judge conducted the OPH in this case, including the decision to strike out the second claim without clear prior notice and separate consideration. Additionally, there was also an error made in conflating the claims against Barclays with pertinent information needed to bring proceedings against HSBC. The order to remit the case to a differently constituted Tribunal signifies a ‘rethink’ was needed, devoid of any impressions formed in the prior proceeding.

Conclusion

The EAT’s decision to remit the case underscores the importance of a Tribunal honouring the procedural frameworks and applying relevant principles judiciously. The duty to hear cases fairly requires constant navigation between efficiency in caseload management and the preservation of a party’s rights to bring potentially meritorious claims. This case exemplifies the intersection of complex procedural intricacies and the foundational requirements of justice by providing a compelling analysis on the application of procedural and substantive discrimination law within the UK employment tribunal proceedings.