The Court of Appeal has provided guidance on the importance of assessing the extent of the claimant’s knowledge of material facts when an employment tribunal is considering if it should extend the ordinary time limit for bringing discrimination claims.
Background
The claimant was made redundant by a bank (Bank 1) during maternity leave and subsequently brought a claim against it for sex discrimination. In 2018, while her sex discrimination proceedings were still ongoing, the claimant applied for a senior role at a different bank (Bank 2). Despite having received positive feedback and the hiring manager telling her that he wanted to appoint her, in July 2018 she was informed that her application for the role had been unsuccessful. She learnt that someone from Bank 1 had given Bank 2 negative feedback about her and she suspected that her ongoing sex discrimination claim against Bank 1 may have been the reason for this.
In October 2018, she made a data subject access request (DSAR) for data relating to the recruitment process to Bank 2 and received nothing significant. However, in June 2020 the claimant received further information from Bank 2, which Bank 2 acknowledged it should have sent her in 2018 in response to her DSAR. This information suggested to the claimant that Bank 2 had initially considered her to be a very strong candidate, but that a senior manager had learnt about her sex discrimination claim against Bank 1, which had provided a negative reference for her. In November 2020 and May 2021, the claimant brought claims against Bank 2 for race and sex discrimination, and victimisation. This was more than two years out of time, but a tribunal may accept discrimination claims presented out of time if it considers it just and equitable to do so.
The Employment Tribunal (ET) struck out the claims on grounds that they were out of time and it found that it was not just and equitable to extend the time limit. The Employment Appeal Tribunal (EAT) allowed the claimant’s appeal and Bank 2 appealed to the Court of Appeal (CA).
Court of Appeal
The CA unanimously dismissed Bank 2’s appeal, upholding the EAT’s decision that the ET had erred in determining that the date on which the claimant had sufficient knowledge to bring her discrimination claims was in 2018 as opposed to 2020. The CA held that the claimant was not made aware of the full extent of Bank 2’s discriminatory conduct until 2020. It held that where a claimant seeks an extension of time on the basis that they were unaware of important facts material to the viability of their claim, it is necessary for the tribunal to consider the extent of their knowledge, or grounds for suspicion, to assess what justice and equity require. Accordingly, the CA remitted the case to another employment tribunal to assess whether it would be just and equitable to extend the time limit for bringing the claimant’s claims.
Key takeaways for employers
There are several lessons to take away from this case:
- If a claimant seeks an extension of time to bring a claim of discrimination against them due to lack of knowledge of material facts, tribunals will assess the extent of the claimant’s knowledge when determining whether to extend the time limit.
- It is not just employees who can bring discrimination claims – job applicants are also protected from unlawful discrimination.
- Employers should be wary of rejecting an applicant based on negative feedback gleaned informally from a previous employer.
- It is important to maintain well-documented records of decision-making thought processes during recruitment.
Sources
https://www.proemploymentlaw.co.uk/hsbc-loses-appeal-in-bankers-sex-discrimination-case/
