Carmen Chevalier-Firescu v HSBC Bank PLC

This appeal arises out of the decision of Employment Judge Burgher sitting in East London Employment Tribunal at an Open Preliminary Hearing (OPH). The hearing took place on 22 June 2021 and 7 September 2021. The Judgment and Reasons were sent to the parties on 25^th of October 2021. The decision appealed against was one to strike out the Claimant’s claims made following an Open Preliminary Hearing (OPH).

The Appellant to this appeal was the Claimant before the Tribunal. I shall refer to the Appellant and Respondent as Claimant and Respondent respectively, as they were before the Tribunal.

By the time of the OPH, the Claimant had issued two claims before the Employment Tribunal. The first was claim number 3213181/2020, (“the First Claim”). That claim was issued on 1 November 2020. In it, the Claimant alleged that she had been subjected to race and sex discrimination and victimisation by the Respondent and one of its managers, a Mr Remi Bourrette. The alleged acts of discrimination concerned her potential recruitment in 2018 and Mr Bourrette’s alleged intervention in that recruitment process. She alleged that Mr Bourrette’s intervention, and negative feedback about her, was based upon information which he had obtained from her former boss at Barclays, against whom she had issued Tribunal proceedings. She also alleged that the Respondent had failed to disclose key information to her relating to her primary allegation of sex discrimination regarding her recruitment in 2018. The Claimant also made a claim of race discrimination. She stated that she met with another of the Respondent’s manager on 29^th September 2020 (the recruiting manager, Mr Dutruit) who not only stated that the reason she was not recruited was because of feedback from “her old boss at Barclays” received from Mr Bourrette but also that, when speaking about her future employment, that this may be more difficult because of connections between senior managers in the Equity Derivatives teams within the Respondent who knew her old boss and who, like her old boss, were of Lebanese origin.

The second was claim number 3202890/2021, (“the Second Claim”). The Second Claim was issued on 14^th May 2021, just over a month before the OPH took place on 22^nd June 2021. The Respondent first received notice of it on 3^rd June 2021. In that Second Claim, the Claimant asserted that she had continued to seek employment with the Respondent and that, because of ongoing acts of sex discrimination and victimisation, she was not recruited, had been ‘blacklisted’, and that the Respondent had given poor, unfavourable, informal references about her within the City.

On 19^th January 2021 the Tribunal gave notice of an OPH to be heard in respect of the First Claim (the Second Claim not having been issued) to take place on 22 June 2021. On 3 June 2021, the Tribunal gave notice of an Open Preliminary Hearing to take place in respect of the Second Claim on 25 November 2021. By further correspondence issued on that day (3^rd June 2021) the Tribunal also informed the Respondent of the existence of the Second Claim and asked the parties about the possibility of the two claims being heard together. The Claimant stated that she considered that the cases should be consolidated as “the second claim is effectively a continuation of the same alleged course of continuing conduct alleged in the first claim.” The Respondent stated that it considered that the question of consolidation should be considered at the OPH on 22^nd June 2021.

On 17^th June the Respondent lodged its ET3s and Grounds of Resistance in respect of the Second Claim. In it, the Respondent asserted that the claim had no reasonable prospect of success and should be struck out.

On 24 May 2021 the Claimant made an application for specific disclosure to the Tribunal. The letter of 24 May 2021 from the Claimant’s solicitors record that disclosure lists were exchanged on 18 May 2021 but that the Respondent had refused requests for disclosure which the Claimant considered were necessary in order to prepare for the OPH. The letter described the Respondents’ disclosure as ‘materially deficient’. The Respondents objected to the disclosure sought. By a letter of 2 June 2021 the Tribunal (EJ Lewis) refused the application for specific disclosure stating that it was, “premature and went beyond the issues to be determined at the OPH”.

That is the procedural background against which the OPH began on 22^nd June 2021. The OPH was heard by a Judge sitting alone, Employment Judge Burgher. The Claimant was represented by counsel at the hearing on that date. The Respondents had applied for removal of Mr Bourrette as a respondent as he was not an employer for the purposes of s.39 of the Equality Act 2010. The Claimant withdrew her claims against Mr Bourrette and the Tribunal dismissed the claims against him. In oral submissions before the EAT the Claimant’s counsel stated that that this was because the Claimant had understood that the Respondent did not rely upon the statutory defence set out in s.109(4) of the Equality Act 2010 (“EqA2010”). The hearing was not completed on 22^nd June 2021; it was adjourned part heard. It resumed on 7 September 2021.On that date the Claimant represented herself. The Claimant also submitted written closing submissions.

On 26^th October 2021 the Tribunal sent the Reserved Judgment and Reasons to the parties. The Judge dismissed all of the Claimant’s claims, both those made in the First and the Second Claims. The Tribunal’s Judgment was as follows:

The Claimant asserted that she sought to apply for work with the Respondent over a significant period of time which ran from April 2018 until around the time she lodged her Second Claim. Her case, advanced in the two separate claims before the Tribunal, was that, whilst she discovered, indirectly, in September 2018, that she had been unsuccessful in respect of one particular role (the GCB3 vacancy) she actively sought employment with the Respondent for a further period of time but was not successful. She asserted that her lack of success was attributable to information gained by the Respondent from her former employer, Barclays, against whom she had made a claim of discrimination, which served, effectively, to ‘block’ her recruitment. She asserted that her knowledge of what had occurred was affected by piecemeal and late provision of information to her by the Respondent. In addition, she asserted that several other factors arising out of the Covid pandemic, her pregnancy and a family bereavement, had impacted upon her and were relevant to the time at which she issued proceedings.

It was common ground between the parties that the Respondent had been considering recruiting the Claimant in April – July 2018. The Claimant asserted that sometime after she discovered that she had not been successful in respect of that possible role, (which was in or around late August 2018) she only discovered at a significantly later date, that a manager with significant influence within the Respondent in respect of her possible recruitment, Mr Bourrette, had intervened in that process. Broadly, she asserted that that took place in late August 2020; that Mr Bourrette told her that he had become aware of her relevant protected act (i.e., the claim against her former employer, Barclays) and that he had intervened in the recruitment process because of a bad/victimising reference he had received from her former boss at Barclays, informally, about her. She further asserted that relevant information about that which Mr Bourrette had said and done was deliberately concealed from her by the Respondent.

On the other hand, the Respondent asserted that whilst the Claimant was indeed considered for the specific GCB3 role in the spring/summer of 2018 (between April -mid-July 2018), she was unsuccessful in that application. It asserted that, thereafter, rather than genuinely seeking to apply for a role with the Respondent, the Claimant engineered situations whereby she met with senior managers from the Respondent, in order to extract information from them to support litigation she was intent on pursuing against the Respondent. It asserted that, after mid-July 2018, there were no roles for her to be considered for, and that, consequently, she was not an ‘applicant for employment’ within the meaning of s.39 of the Equality Act 2010 (EqA 2010).

At the OPH the Judge found in favour of the Respondent in respect of that latter issue (whether the Claimant was an applicant for employment within the meaning of s.39 of the EqA 2010). Although the Claimant sought to appeal against the determination of that important issue at the preliminary hearing, that ground of appeal was not permitted to proceed to a full hearing, for reasons set out by Eady P. at a hearing pursuant to r.3(10) of the EAT Rules 1993 on 20^th April 2023.

However, the following grounds of appeal were allowed to proceed:

I have largely taken the following facts from the Tribunal’s Judgment and Reasons.

The Claimant previously worked for Barclays Bank (“Barclays”). The Claimant issued discrimination claims against Barclays in respect of her employment. Her first claim against Barclays was issued in December 2017. Initial litigation against Barclays was settled. An agreement was reached in January 2019. The EAT was informed, in submissions, that the settlement encompassed a “seven figure settlement, a clean reference, and a non-derogatory clause”, although I consider little, if anything, turns on the level of any sums agreed as part of that settlement in this appeal.

The Claimant looked for alternative work and approached, amongst others, the Respondent. The Claimant’s case was that she was unsuccessful in securing new work, at least in part, because Barclays had been providing informal, negative and victimising references to prospective new employers. In addition to the claim issued against Barclays referred to above, the Claimant issued further proceedings against Barclays in June 2018, November 2018 and April 2020. Within her claims against Barclays, the Claimant brought a claim for post-termination victimisation in respect of the references Barclays were alleged to have given.

None of the pleadings, Claim Form, Responses, or the settlement agreements in respect of the Barclays litigation were before the EAT. It also appears that those documents were not before the Employment Tribunal during the OPH.

The Claimant is an experienced investment banker with particular skills in sales and structuring. The Respondent is a trading entity within a corporate group which is a global banking and financial services organisation.

The Judge found that the Respondent has a number of internal business divisions, including its Global Banking and Markets business (GBM), which in turn includes the Respondent’s Global Equities business. It operates nine Global Career Band levels (GCB levels), from GCB8 (most junior) to GCB0 (most senior). The Respondent is regulated by the Financial Conduct Authority. Since 2016 it has been subject to the Senior Managers Certification Regime (SMCR) and has been committed to certifying that relevant employees within GBM are ‘fit and proper’ persons. The Tribunal found that, as a result, the Respondent has enhanced its recruitment processes to seek compliance with SMCR and ensure that new appointees are fit and proper to undertake their roles and meet the regulatory requirements and commitments to which the Respondent is subject. The Tribunal found that from mid-2018 (about the time the Claimant was being considered for employment) a recruitment process within GBM was used which involved six steps consisting of:

The Judge found that in January 2018, the Respondent sought to recruit a director to lead its institutional flow sales team, reporting to Mr Eric Dutruit. This was a GCB3-level role. Mr Dutruit was the hiring manager. In addition, in the period leading up to April 2018, Mr Dutruit had also been keen to hire someone in the Equity Derivatives Sales team with experience in risk recycling. There was, however, no confirmed, additional vacancy advertised.

On 18 April 2018 the Claimant speculatively sent her CV to a friend who was a director working within the Respondent. The friend forwarded the CV to the Global Head of Equities, Mr Hossein Zaimi. Mr Zaimi then emailed Mr Dutruit, asking the latter to interview the Claimant. That interview took place on 11 May 2018. After it, Mr Dutruit emailed Mr Zaimi and stated: “we need to hire [the Claimant].” The next day, 15 May 2018, Mr Zaimi responded “Find space and do it”. On 18 May 2018 Mr Dutruit met for coffee with the Claimant and he informed the Claimant that he would like to progress with hiring her. During that meeting/interaction, the Claimant explained that she was, “in a dispute with her former employer, Barclays.”

As part of the recruitment process, the Respondent, through Mr Dutruit, sought feedback on the Claimant from her clients and former colleagues. The information disclosed to the Claimant was that that feedback was generally positive, although an email dated 12^th of June 2018 also recorded that some very negative feedback was received. It stated: “Off that’s [sic] [if the Claimant is the] best candidate happy to support but we know that some of the feedback has been very negative too.” The Claimant did not see that email. However, she wasmade aware that some negative feedback had been received at that time.

To address that, on 5 July 2018 the Claimant provided further positive references to address the negative feedback or observations that she was aware had been provided about her during May/June 2018. The Judge noted that it was clear that, despite the negative feedback, Mr Dutruit was still actively progressing the Claimant’s candidacy.

On 13 June 2018 the Claimant was asked to take the Hogan test, a test used by the Respondent as part of the recruitment process to assess candidates’ values and leadership capabilities. (By reference to the recruitment process set out in paragraph 20 above, this was stage (d), i.e., the fourth of the six stages in the process).

On 15 June 2018, one of the Respondent’s managers who had interviewed the Claimant (Mr Lacour, the Respondent’s Global Head of Equities Trading) sent an internal email in which he identified the Claimant, and another one or two (the redactions meant this was not entirely clear, at least initially), as strong candidates. He noted that it was necessary to make a decision and that:

Significantly (on the Claimant’s case) this email was not disclosed to the Claimant until August 2020.

There was a dispute of fact before the Tribunal at the OPH as to whether GCAS (Global Compensation Approval System) for the Claimant had been signed off in June 2018. Again, by reference to the process set out at paragraph 20 above, this was stage (e), i.e, the fifth stage out of a total of six. The Judge found that it had not been:

I consider that it is important to note that the Judge did not hear evidence from Mr Lacour at the OPH. Nor did there appear to be written witness evidence from him before the Judge. The Judge referred to Ms Collett’s evidence who had analysed the Respondent’s recruitment records and gave evidence, accepted by the Judge, that there was no record on the computerised system showing that GCAS had taken place.

The Claimant had been employed at the level of a Vice-President (VP) at Barclays, not Director level. One of the Respondent’s Recruitment Managers, Ms Andersson, met with the Claimant on 18 June 2018 (three days after Mr Lacour’s email above) and set out, in a subsequent email of the same date, that her impression was that the Claimant was looking to be recruited above that level. Again, at the OPH, there was a dispute of fact about some of the Respondent’s recruitment policy. The Tribunal found as a fact that the Respondent operated a ‘no promotion on hire’ policy. The Judge found (at paragraph 50) that the Claimant, who had not worked at Director level in Barclays, would have had to be recruited at a GCB4 level to secure employment with the Respondent. Ms Andersson recorded in an email that she did not think that the Claimant would come to the Respondent for a VP or Assistant Director role. The Judge accepted this was the case. The Judge stated:

The Judge found that the process in respect of the Claimant’s potential recruitment ceased in or around mid-July 2018.

The Claimant learnt, in or around August/September 2018 that Andre van Rieckoff had been offered a role with the Respondent. On 20^th September 2018 she sent a WhatsApp message to Mr Dutruit which stated, “I just heard Andre von Rieckoff is coming to HSBC. I believe congratulations are in order. This also makes me believe that it is official now that I will not be joining you. It would have been a great pleasure. All the best.” On 17 August 2018 the Respondent had announced that the GCB3 role had been filled by the hire of Mr Andre von Rieckoff. He was another of the strong candidates referred to in Mr Lacour’s email of 15 June 2018.

Various contacts took place between the Claimant and managers within the Respondent between 20 September 2018 and August/November 2020, at the initiation of the Claimant. In addition to the meetings referred to below at paragraphs 34-38, the meetings the Claimant had with the Respondent during this time were as follows:

On 17 June 2020 the Respondent sent the Claimant personal data in response to a data subject access request (DSAR) she had made some time previously in 2018. In the email which accompanied the information, it was stated on behalf of the Respondent, “Please accept our apologies that some of the emails attached were not located in your original search which was carried out in 2018.” Included within that disclosure (pages 1-7 of the Supplementary Bundle) were:

During the meeting on 29 September 2020 between the Claimant and Mr Detruit, which the Claimant covertly recorded, Mr Dutruit is alleged to have made a comment about Lebanese connections. Those comments were, on the Claimant’s case, relevant to the Claimant’s claim of race discrimination. The race discrimination claim is made in the First Claim.

Following receipt of the personal data the Respondent sent to the Claimant on 17 June 2020, the Claimant made contact with Mr Bourrette and met with him on 26 August 2020 to discuss the feedback he had provided in July 2018. The Claimant covertly recorded the conversation.

At their meeting on 26^th August 2020, the Claimant was informed by Mr Bourrette that he had talked to Eric Dutruit and Renauld Delloye about negative feedback which he had received from a friend of his, who was one of the Claimant’s bosses at Barclays. The Respondent has not yet identified the name of the relevant individual at Barclays. (The identity of that individual was one of the matters the Claimant sought specific disclosure of in her application of 24 May 2021 (see paragraph 7 above) together with disclosure of communications between the former boss at Barclays and Mr Bourrette.) However, Mr Bourrette set out information about his meeting with the Claimant on 26^th August 2020 in an email dated 27 August 2020 which was sent from Mr Bourrette to an individual in the Respondent:

This email, and hand written notes of a meeting with Mr Bourrette dated 29^th September 2020 which, again, appears relevant to the issues in the Claimant’s claim, were disclosed to the Claimant by an email dated 16 October 2020.

The Respondent’s HR department subsequently investigated the Claimant’s complaints regarding Mr Bourrette’s feedback. On 7 October 2020 the Respondent informed the Claimant that they had investigated her complaint and found no breaches of process.

At the outset of the Reasons, the Judge identified the purpose of the OPH and the issues to be determined at the OPH. (See paragraphs 1-2.2 of the Tribunal’s Judgment, set out at paragraph 9 above). These were whether the Tribunal should strike out the Claimant’s claims on the basis that they had no reasonable prospect of success; or, alternatively, because they had been presented out of time. In setting out those issues, the Judge made no distinction between the First or the Second Claims. No reference is made to consolidation of the two Claims. No reference is made to the fact that notice of the OPH for the Second Claim had been set for a date in November 2021.

The Judge recorded that the Respondent made two submissions. First, that in respect of allegations concerning events after mid-July 2018, the Respondent asserted that the Claimant was not a job applicant, and did not, therefore, fall within the scope of s.39(1) or s.39(3) of the EqA 2010. The Tribunal found that that was the case. As noted above, there is no appeal before me in respect of that aspect of the Judge’s decision. Secondly, in respect of complaints which concerned matters which occurred prior to mid-July 2018, the Respondent asserted that those claims were out of time, and that it would not be just and equitable to extend time. No distinction was made between the allegations within the First Claim or the Second Claim. The Judge referred to the second draft agreed list of issues dated 4 June 2021 attached to the Judgment. It appears relatively clear, given the timeline of events, that that list of issues was prepared in respect of the First Claim only (the Respondent only knew of the Second Claim on 3^rd June 2021).

The Tribunal heard oral evidence from three witnesses: the Claimant, Mr Longmore, an expert witness who gave evidence about recruitment within investment banking, and Ms Collett who was the Respondent’s Leader Recruitment for GBM and Private Bank, UK and Europe. None of the managers with whom the Claimant had met in the meetings set out above, or who were involved in, or discussed her possible recruitment, gave evidence.

At times, the language used by the Tribunal to describe the Claimant appears to be particularly critical. For example, at [7] the Judge stated:

The Judge also recorded that the Claimant was “deeply suspicious” that the Respondent had withheld relevant documents, specifically relating to the Respondent’s GCAS and her concern that that disclosure may have helped her to establish the basis for her claims that she was being considered for other roles. The Judge was satisfied that, at the time of the hearing, there was no GCAS documentation which had not been disclosed. In context, however, the Claimant’s concerns were not without, at least, some foundation. The Respondent had, belatedly (in 2020 rather than 2018) provided information which was directly relevant to her claims and the allegations she made. The Respondent accepted that some of the material emails had not been sent initially after the Claimant had made a DSAR request and were only sent later in 2020. In addition, given the early stage of the Second Claim, formal disclosure had not taken place at all.

The Judge made a number of factual determinations regarding recruitment within the relevant sector, namely the recruitment of senior executives within the financial sector, and, within the Respondent. The Judge found that Mr Longmore’s evidence was credible as “a generic overview of the head-hunting process” in the relevant sector, but that that individual did not have experience or knowledge specifically regarding recruitment within the Respondent. The Judge found that the ‘generic’ evidence established that,:

The Judge accepted that:

Within the Respondent organisation the Judge found that:

In respect of time limits, the Judge stated that the Claimant had ‘extensive experience of Employment Tribunal litigation’, in light of the previous claims she had issued against Barclays. In evidence, the Claimant accepted that she knew about Employment Tribunal time limits and had access to legal representation. The Judge recorded that the Claimant had made 8 separate DSAR requests to the Respondent which the Respondent responded to. It was, however, common ground that some emails which should have been disclosed earlier, were only disclosed in 2020, as to which see paragraphs 34- 39 above.

The Claimant produced, before the Tribunal, a witness statement from the Barclays litigation, dated December 2018. The Judge referred to specific paragraphs and statements within it in which the Claimant had stated that there had been a series of positive interviews and meetings with managers from the Respondent. The statement continued:

The Judge considered that the Claimant’s position outlined in that statement was inconsistent with the position adopted by her in the present proceedings, that she was being considered for recruitment with the Respondent continuously from April 2018 until 15 February 2021. As set out above, the Judge concluded that this was not the case.

Further, as noted above at paragraphs 23-24, the Judge held that the Claimant was aware in 2018 that the Respondent had received some negative feedback in June 2018. She was able to address that by providing further positive feedback. However, a significant part of the Claimant’s case in relation to time limits, was that she did not have knowledge about key matters involving Mr Bourrette’s intervention and that he had been provided with additional negative feedback from her former boss at Barclays until the Respondent (belatedly) disclosed that information to her in June and October 2020. In paragraph 70 the Judge made reference to this fact:

Earlier in the Judgment the Judge stated however:

The Judge concluded that the Respondent operated a “no promotion on hire” policy and set out the factual matters set out above. For reasons which are set out in the Reasons at paragraphs 50-51, he concluded that there was not another role which the Claimant could be recruited to.

Against the factual background determined by the Judge, and for the reasons set out at paragraphs 78-90 of the Reasons, the Judge determined that the Claimant was not an applicant for employment within the meaning of s.39 of the EqA 2010. That addressed the first basis upon which the Respondent sought an order striking out the Claimant’s claims as set out in paragraph 1 and paragraph 2.2 of the Reasons.

The Judge then considered the issues in respect of time limits. In the Reasons, the Judge recorded that:

The Judge set out s.123 of the EqA 2010 and referred to decisions in Commissioner of Police of the Metropolis v Hendricks [2002] EWCA Civ 168 CA, Lyfar v. Brighton and Sussex University Hospital Trust [2006] EWCA Civ 1548 and Aziz v FDA [2010] EWCA Civ 304; Robertson v Bexley Community Centre [2003] EWCA Civ 576; Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 and Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23. He noted that the extension of time is an exception rather than the rule (paragraph 95) and stated at paragraph 99:

As regards strike out, the Judge set out paragraphs from the judgment of Simler J. in Zeb v Xerox (UK) Ltd UKEAT 0091/15, extracts from Anyanwu v South Bank Students’ Union [2001] IRLR 305 and Ezsias v North Glamorgan NHS Trust [2007] ICR 1126.

The Judge’s further analysis in respect of time limits appears at paragraphs 111-134 of the Judgment:

The grounds of appeal in this case arise in the context of a Tribunal’s decisions to determine a number of preliminary issues at an OPH, and the determination of an application to strike out the Claimant’s claims on the grounds that they had no reasonable prospect of success, alternatively were out of time and in circumstances when it was not just and equitable to extend time.

Rule 37 of the ET (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, provides as follows:

As set out below, it is well established that caution must be exercised when considering applications to strike out at preliminary stages of proceedings in discrimination claims on the grounds that the claim(s) have no reasonable prospect of success.

Rule 53 of the ET Rules of Procedure 2013 sets out the Tribunal’s power to conduct Preliminary Hearings. It provides as follows:

The directions set out in r.54 regarding the procedural steps and requirements to be taken prior to a preliminary hearing taking place are mandatory. Whilst the Tribunal has a general discretion to make orders or directions of its own initiative, the specific rule set out in r.54 about the prior notice which must be given in respect of preliminary hearings is mandatory. In addition, in Caterham Schoool Ltd v Rose (UKEAT/0149/RN, the EAT (HHJ Auerbach)) emphasized the importance of ensuring that there is clarity as to the purpose of a preliminary hearing and what is to be considered. InCox Adecco Group [2021] ICR 1307 HHJ Tayler made the same point:

In addition to the points made in the preceding paragraph, I add encouragement to Tribunals and parties and representatives to consider carefully whether a particular issue can be fairly determined at a PH and whether it should be. There may be obvious financial and resource advantages to doing so. However, Employment Judges should be alive to the possibility that what happens at that hearing (which may well take place at an early stage of litigation), may lead to the determination of a key issue before a full hearing on the merits; prior to full disclosure having taken place and with evidence (relevant to one point) being heard and tested in a vacuum, not within the context of all of the evidence. It is self-evident that determining pivotal issues at that point may lead to injustice. It is, therefore, essential not to lose sight of the well stated principles: there are compelling public interest reasons that discrimination cases are determined after full consideration of all relevant evidence; allegations of discrimination are highly fact sensitive; it is not uncommon that a large proportion, or even, most of the probative (documentary) evidence is in the hands of one party. It is for all these reasons that the principles have been stated, time and again, that only in the clearest of cases should a discrimination case be struck out without full consideration of the merits.

In Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 Maurice Kay LJ set out this oft quoted passage:

It is also appropriate to record that at para.39, Lord Hope added:

InChandhok v Tirkey (EHRC intervening) [2015] ICR 527 EAT, Langstaff P. set out in more detail why caution should be exercised in respect of applications to strike out discrimination claims before all evidence is heard. He noted that a claim of discrimination will centrally require an evaluation of why an employer acted as they did:

Langstaff P noted that the passages in Anyanwu stopped short of a blanket ban on strike-out applications succeeding in discrimination claims. He continued:

See also similar expressions of caution in Mbuisa v Cygnet Healthcare Ltd UKEAT/0119/18; Hassan v Tesco Stores LtdUKEAT/0098/16.

In Mechkarov v Citibank[2016] ICR 1121, Mitting J warned against not conducting mini trials of oral evidence to resolve core disputed facts.

In Cox v Adecco Group UK & Ireland[2021] ICR 1307, HHJ Tayler added his voice:

Section 123 of the EqA 2010 provides (so far as relevant) as follows:

Section 123(1) of the EqA 2010 sets out the primary time limit within which claims in respect of discrimination must be brought before an employment tribunal (three months starting with the date of the act to which the complaint relates) or, such other period as the employment tribunal thinks is just and equitable.

Section 123(3)(a) provides that for the purposes of section 123, “conduct extending over a period is to be treated as done at the end of the period.” In Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530 CA, the Court of Appeal refocused attention, in s.123(3), back onto the words of the statute, and away from concepts of “policy, rule, practice, scheme or regime”. At that time, those words had become widely used as an indicia of whether an individual could avail themselves of the provisions of s.123(3), the question often being whether there had been a ‘one off act, albeit with continuing consequences,’ or, rather the application of a police, rule etc. The Court of Appeal stated that concepts such as a ‘policy’, ‘rule’ etc. should not be treated as defining, themselves, whether there was an ‘act extending over a period’. Such an approach led to a focus on a side issue, for example, whether a ‘policy’ could be discerned, rather than the substance of the complaint. The focus should be on the statutory language and whether the facts and evidence support the assertion that such a continuing discriminatory state of affairs exists, or existed, at the relevant time.

However, Parliament has also determined that Tribunals should have a discretion to hear and determine discrimination claims within “such other period as the employment tribunal thinks just and equitable.” Those words confer upon Tribunals a broad discretion; “the widest possible discretion” to accept claims within a different time frame, which is ‘broad and unfettered’ (See Abertawe Bro Morgannwg University Local Health Board v Morgan[2018] ICR 1194, at 1201 B-C and 1203A-B.)

Some caution also applies to consideration of limitation issues in discrimination cases as a preliminary issue. Again, there is no ban on doing so. In some cases, determination of that issue as a preliminary issue may be wholly appropriate and a good application of the principles in the overriding objective. See for example, Southwark London Borough Council v Afolabi [2003] ICR 800 CA. In the present context, the following passage is particularly relevant:

In practice, it is often difficult to disentangle time points from the merits of the claims themselves: for example, when considering the time limit in s.123(1)(b) EqA 2010 where s.123(3)(a) EqA 2010 applies, it may not be possible to determine whether an act extended over a period, unless a decision is made about whether separate incidents amounted to unlawful discrimination. One consequence of this is that in many such cases, there may be no appreciable saving of time in seeking to determine those issues at a PH, because determination of whether complaint was in time, and if not, whether to extend time, may well require an analysis of some of the underlying merits.

As the Judge in this case rightly identified in this case, the broad discretion in s.123(1)(b) of the EqA 2010 must be exercised judicially, taking into account relevant matters, and disregarding those which are irrelevant. There is no justification for reading into the statutory language any requirement that the tribunal had to be satisfied that there was a ‘good’ reason for the delay, nor indeed, is there any mandate that time could not be extended in the absence of any explanation or apparent reason for the delay. At most, “whether there is any explanation or apparent reason for the delay and nature of any such reason are relevant matters to which the tribunal ought to have regard.” (See Abertawe 1203 C-D). The best approach for a Tribunal in considering the exercise of the discretion under s.123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including, in particular, the length of, and the reasons for the delay.

In this case, the Claimant’s primary case was that her claims were not out of time. She asserted that the conduct about which she complained constituted an act which extended over a period, broadly because she asserted that, following receipt of the informal, bad, victimising reference, and the intervention by Mr Bourrette in her recruitment in June/July 2018 (something she only discovered in 2020) the Respondent effectively blacklisted her.

Important guidance about the approach to be taken to considering whether an act or conduct extends over a period within the meaning of s.123(3)(a) of the EqA 2010 in Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530: the focus should be on the substance of the complaint, rather than distinctions between, on the one hand, for example, the application of policies or rules, as opposed to ‘one off’ acts which may have continuing consequences.

In E v XLZ UKEAT/0079/20/RN Mrs Justice Ellenbogen carried out a detailed review of appellate authorities regarding cases where Tribunals have considered strike out at a preliminary hearing in cases where the Claimant asserted that the relevant act(s) of discrimination was one which extended over a period. In particular, she stated:

This case was not cited by either party at the hearing. I subsequently drew the parties’ attention to the Judgment and invited further submissions in respect of it. Each contended that the authority supported the case which they advanced in the present case.

Section 27 of the EqA 2010 prohibits acts of victimisation: it provides that ‘A’ victimises ‘B’ if A subjects B to a detriment ‘because’ B ‘does a protected act’, A believes B has or that B will do so. (Section 27(1)). Making an allegation of discrimination, or, bringing proceedings in respect of such an allegation is a protected act. (Section 27(2)).

It is well established that to succeed in a claim of victimisation, the Claimant must establish that there is a causative link between the act complained of and the relevant protected act. See for example Aziz v Trinity Taxis Ltd [1988] ICR 534 (CA); Nagarajan v London Regional Transport [1999] IRLR 572 (HL). Whilst conscious motivation is not required to be proved (see Nagarajan) the question to be answered is why the alleged discriminator acted as they did: “What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.” (Per Lord Nichollsin Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1497 at page 1954). In this context it is to be noted that the causative link is different to that which appears in other legal contexts, such as the ‘but for’ test. In Nagarajan Lord Steyn stated that the concept of victimisation:

Finally, but very importantly, I refer to a number of cases regarding the role of an appellate tribunal such as the EAT on appeal.

First, as set out in the authorities, given the width of the discretion set out in s.123(1)(b) of the EqA 2010, the scope of an appellate court to intervene after it has been exercised by a judge is limited. See Abertawe, particularly at paragraph 20.

More generally, see DPP Law v Greenberg [2021] EWCA Civ 672 (CA) (particularly at paragraphs 57-58) where the Court of Appeal set out clearly the need for caution to be exercised by an appellate tribunal when approaching a challenge to the detailed reasoning and findings of fact by a specialist tribunal such as employment tribunals:

Those passages were considered by Mr Justice Griffiths in Oxford Said Business School and White v Heslop UKEATPA/0110/21/VP, particularly at paragraphs 44-48:

Before setting out each party’s submissions in respect of the individual grounds of appeal, I found it helpful to set out the ‘overview’ of the appeal set out by the Respondent’s counsel in oral submission. The Respondent, in its submissions, drew attention to two periods of time, rather than the two separate claims before the Tribunal. It was submitted that it was important not to lose sight of the fact that:

In addition, it was submitted that the Claimant’s actions in contacting senior individuals within the Respondent after she had discovered that she had not been successful for the one available role, was contrived so as to create a ‘continuing act’ and/or to construct the Second Claim; that the Second Claim was “ cynically formulated set of allegations and a contrived attempt by the Claimant to extend time for earlier allegations which were themselves substantially out of time”.It was submitted that the Tribunal saw through ‘that cynical’ attempt by the Claimant. In those circumstances it was again submitted that this Tribunal should be cautious to interfere: the Judge at first instance heard evidence and reached factual determinations which, in line with the authorities above, the EAT should be slow to, or not interfere with. Again, these submissions required careful consideration.

I now turn to the more detailed submissions regarding the individual grounds of appeal.

In respect of Ground 1, the Claimant submitted that the Second Claim was clearly not before the Tribunal at the OPH; whilst the Tribunal had suggested consolidating both claims, that had not occurred and was, at best, to be considered at the OPH. The requisite notice had not been given to the Claimant that an application to strike out her claim would be considered at the OPH. In fact, the Respondent’s Response had only been accepted a matter of days prior to the OPH. Preparation for the OPH clearly related only to the First Claim; the list of issues referred only to the First Claim; witness statements for the OPH had been exchanged prior to lodging of the Respondent’s Response in the Second Claim and therefore the Claimant’s witness statement could not address any matters set out in that document; documents referred only to the First Claim Number; the dismissal of the claim against Mr Bourrette only referred to the First Claim Number.

Further, it was submitted that no disclosure had taken place in respect of the Second Claim, and that which had taken place was in respect of the First Claim was limited, it being described as “premature” as the OPH was not a final hearing on liability. It was submitted that the approach taken by the Judge was inconsistent with authorities and was flawed. It was submitted that irrelevant matters may have operated in the mind of the Judge, resulting in a flawed approach, one such example being the contents of paragraph 129 of the Judgment set out above.

The Respondent submitted that, under r.37 of the ET Rules of Procedure 2013, the Tribunal had the power to strike out the Second Claim ‘at any stage of the proceedings’ (r.37(1)), provided it had given the Claimant “a reasonable opportunity to make representations” (r.37(2)). In this case, the OPH was heard over an extended period of time (2 days) with time for reflection and further preparation between the first two days and the last (22 June 2021 and 7 September 2021) and thereafter the Claimant lodged 49 pages of written closing submissions. That, it was submitted, was more than a reasonable opportunity to make representations. Further, it was submitted that the reality was that the Second Claim was before the Tribunal, both parties having referred to its existence, the Claimant had asked for the two claims to be consolidated and, in the Response lodged by the Respondent dated 17 June 2021, the Respondent had applied for the Second Claim to be struck out and to consider this at the PH if time allowed.

The strike out of the Second Claim was squarely open to the Judge, particularly in light of the decision regarding s.39 of the EqA 2010. To do other than the Judge did was to act contrary to the overriding objective, particularly having regard to Ahir v British Airways plc [2017] EWCA Civ 1392 CA, particularly paragraph 16.

In all the circumstances, it was submitted that strike out of the Second Claim was in accordance with the overriding objective, and that a further listing to consider the issue would have been disproportionate and not in accordance with that principle.

On behalf of the Claimant, it was submitted that a victimisation claim may only be brought if a Claimant knows both, that the Respondent knew of her protected act, and, importantly, that the Respondent’s relevant conduct (in this case not to appoint the Claimant to a role) was done because of the relevant protected act. The Claimant needed to be aware of something, at least, relevant to the issue of causation. See in particular Aziz at page 546, e-g; Nagarajan para.18. In this case, whilst the Claimant was aware that Barclays had provided some negative references to Mr Zaimi in June 2018, at that point in time, she had no reason to believe that the Respondent itself had done anything other than to act in good faith on the basis of that which it had been told by Barclays. It was submitted that, crucially, it was only when she received further documentation from the Respondent in August and October 2020 (some of which should have been disclosed following her DSAR in 2018) that she became aware that Mr Bourrette knew about her previous discrimination proceedings through the informal route of her old boss (rather than, as she had explained the position, that she was simply in a dispute with Barclays as she described to him) and that that had played a part in the decision not to progress her candidacy. Prior to disclosure of those documents, the Claimant had no knowledge of victimizing conduct on the part of Mr Bourrette or the Respondent. In addition, it was only at that point in time that she discovered, through the belated release of information, that she had in fact been a very strong candidate. All of the information she obtained in 2020 was within the gift of the Respondent.

It was submitted that the Tribunal had misunderstood the factual context and/or made inconsistent determinations about it: for example, at paragraph 45 the Tribunal found that the Claimant had undertaken the Hogan test, and not processed through GCAS. Some of the documentary evidence, however, showed that the Claimant’s application had been processed through GCAS. The Judge erroneously failed to take the Claimant’s case at its highest, contrary to Chandhok (particularly paragraph 12), particularly in a case which was so fact sensitive. The Judge also strayed into determining issues which were not identified.

The Judge failed to have sufficient regard to the fact that the Claimant was, in truth, a litigant who was acting for herself at different points, albeit with lawyers in the background, someone for whom English was her third language and, was disadvantaged by the Judge striking out the Second Claim without that having been properly identified as a matter before the Tribunal. At best, the position regarding that claim was ambiguous.

It was submitted that the manner in which the Respondent provided information (described as ‘the piecemeal drip feed of disclosure’) operated to delay the Claimant from obtaining knowledge about important evidence and salient facts. It was submitted that, in error, the Tribunal erroneously found that the DSARs were responded to within 6 weeks of requests (para 25 of the Reasons); and that the Judge, in error, failed to take account of the Respondent’s fault in the delay in proceedings being issued. It was submitted that even Mr Bourrette had appreciated that it was only in August 2020 that the Claimant had some relevant information. It was submitted that it was important to identify delay attributable to the Respondent, and distinguish it from delay attributable to the Claimant. In addition, in that context it was necessary to consider carefully Afolabi and the observations of Rix LJ.

In addition, it was submitted that the Respondent has never disclosed the name of the individual who spoke to Mr Bourrette, simply referring to that individual as “one of her bosses at Barclays” and has not disclosed the conversation between that individual and Mr Bourrette on one of the latter’s personal devices. (See C187).

It was submitted that the Tribunal wrongly and perversely confused and conflated constructive knowledge of the refusal/delay to appoint the Claimant with the Claimant’s knowledge about whether the decision maker/victimiser knew of her protected act and acted against her to refuse the role. Further, that the Tribunal wrongly conflated post-termination victimisation against Barclays with information relevant to bring proceedings against the Respondent.

In that context, it was submitted that the Tribunal’s conclusion that the belated disclosure in August 2020, “did not change” that which the Claimant was already aware of in 2018 (paragraph 123 of the Reasons), was perverse. That, it was submitted, was also evidenced by the findings at paragraph 121.

It was submitted that the Judge erred in concluding (at paragraph 127) that a number of relevant witnesses no longer work for the Respondent. In fact, Mr Dutruit, Mr Bourrette, Mr Leroux, Mr Delloye, Patrick George, Samir Assaf, Mark Lemmel, Hanna Assayag, Andre von Riekoff were still employed at the time of the strike out application.

It was submitted that, where the Judge only heard limited evidence, in a complex discrimination claim, a cautious approach should have been adopted in accordance with Chandhok v Tirkey. Having regard to the late disclosure, it was submitted that (applying Commissioner of Police of the Metropolis v Hendricks[2002] EWCA Civ 168 [2003] 1 AllER 654, and Abertawe Bro Morgannwg University Local Health Board v Morgan[2018] EWCA Civ 640, [2018] ICR 1194, the Claimant had advanced a cogent reason for an extension under s.123 of the EqA 2010.

On behalf of the Respondent, it was submitted that it was simply wrong to suggest that both knowledge of the protected act and that the Claimant was not appointed because of that act was required before a claim could be issued. In any event, the evidence was that the Claimant knew that the Respondent was aware of her protected act because she herself informed Mr Dutruit that she was in dispute with her former employer; that the Respondent has received negative feedback from Barclays; and that she was not appointed. The EAT’s attention was drawn to the findings as to the reasons for that non appointment. It was submitted that, as of the summer 2018 the Claimant had sufficient knowledge to be able to issue a claim of victimisation against the Respondent regarding her non-appointment and that her DSARs revealed that she knew that there had been communications between Barclays and the Respondent. The Claimant withdrew her claim against Mr Bourrette and so, any knowledge about that which he did, was not material.

It was submitted that the Tribunal set out correctly the relevant legal principles and cases and considered relevant factual issues. Correctly applying the principles set out above, the EAT should not interfere with the Judge’s conclusions. In particular, at paragraph 44 of the Judgment, it found that the content of the information the Claimant discovered in 2020 was not inconsistent with her knowledge and understanding in 2018: the Tribunal was entitled to conclude that the Claimant was aware of the necessary elements of her claim in July 2018 and could have brought her claim in 2018. Further, and in any event, the evidence was that the Claimant’s candidacy was being progressed, despite the negative feedback.

Not only was the Judge entitled to conclude that it was not just and equitable to extend time, that was a conclusion the Judge was bound to reach on the basis of the facts before him. There is no authority in support of the proposition that a party must know both of the protected act and that is why particular conduct occurred before issuing proceedings. Most cases are determined on inference. In this case, the Claimant knew enough by the time she submitted her witness statement in 2018 to know that there had been communication between Barclays and the Respondent, and to know that there had been negative feedback, and could, and should have issued then. It was submitted that this case was not an Afolabi type of case, and that that authority should be distinguished.

The Judge’s approach was careful and set out through reasons for his approach and conclusions.

The Claimant’s case was that on 29 September 2020 Mr Dutruit met with the Claimant and, for the first time, explained why she had not been appointed to the role with the Respondent. At that meeting he also made reference to the fact that senior managers (all Lebanese male managers) at the Respondent (including Mr Patrick George and Mr Assaf and Mr Fares) had a Lebanese connection with her former boss, who was also a Lebanese male manager, operating so as to make it more difficult to recruit the Claimant in the future. It was submitted that that feedback suggested that the Claimant had been blacklisted.

It was submitted that as the date of that meeting was 29 September 2020 and the claim was lodged on 1 November 2020, that claim was in time, alternatively, this was a wholly reasonable argument for extending time. It was submitted that the principles espoused in Anyanwu should have been applied.

On behalf of the Respondent, it was submitted that the Judge’s conclusion that the Claimant was not an applicant for employment within the meaning of s.39 EqA 2010 after the summer of 2018, applied to both the claim of victimisation and the race discrimination claim, and was fatal to the claim of race discrimination. Further, it was submitted that the Judge was entitled to conclude that the race discrimination claim was contrived and contrary to the Claimant’s contemporaneous expressions as set out at paragraphs 106 and 108 of the Judgment. It should also be noted that the Claimant had further knowledge in August and September 2020, but still, did not issue until November 2020.

It was submitted that it was perverse of the Tribunal to find at paragraph 119 of the Reasons that the Claimant had submitted a claim in June 2018 against Barclays that was in respect of her non appointment by the Respondent. In particular, the non-appointment did not take place, or was not confirmed until July 2018. The June 2018 claim was not before the Tribunal.

On behalf of the Respondent it was submitted that the Claimant’s submissions required a mis-reading of paragraph 119 of the Reasons: that an insertion of the word ‘in’ before November 2018 lead to a more accurate reflection of the Tribunal’s Reasons; further, that the purpose of this paragraph, when reading the Judgment and Reasons fairly and as a whole, was to expand the point that the Judge made at paragraph 119, that the Claimant was aware of relevant time limits and had access to legal advice. Perversity is a high hurdle to reach. It was submitted that the Claimant had simply not made out the contention in this case.

In this case, a Judge sitting alone, determined preliminary issues in a discrimination claim. Two points need to be made:

That said, in order to approach those tasks, and determine issues at an OPH, in a manner which it is consistent with the overriding objective, it is imperative that Tribunals and Judges actively consider the risks of adopting that course and ensure that they take steps to avoid those risks occurring. The obvious, and greatest risk is that, by adopting this procedure, the Tribunal reaches an unjust result. That is because of the danger that the limited evidence, whilst revealing a convincing detail of one particular aspect of the overall canvas of the issues in dispute within the case, is only a partial fragment of the full picture. When viewed in context of the whole canvas of the evidence, that limited evidence may take on a different significance. Equally, other evidence may lead to a different interpretation of that partial fragment. Part of the Tribunal’s (difficult) task in managing and determining the case in accordance with the overriding objective, is to find the balance between, on the one hand, managing cases efficiently so that non meritorious cases do not use disproportionate time and expense, and, on the other, ensuring that such an injustice does not occur. In that context, it must be recalled that the requirement of the overriding objective is to “hear cases fairly and justly”. Saving expense, avoiding delay and the others matters listed in paragraph 1(a) to (e) are part of that requirement, but ultimately, the mandatory requirement to be achieved is one of fairness and justice.

It is for that reason that when determinative issues are decided upon as a preliminary issue, or where a Tribunal considers a strike out application in a discrimination claim at a relatively early stage of the litigation, it must, so as to ensure that the case is heard fairly and justly, maintain oversight of the whole picture of the litigation, thereby, achieving the purpose of the overriding objective. Another way of putting this is that the Tribunal must ensure that it does not become so focused on the relevant preliminary issue, that it loses sight of the larger picture of the litigation and disputed issues. That is most likely to be achieved by a clear and structured approach to the relevant procedural rules, clear identification of the preliminary issue(s) to be determined, consideration and identification of their consequence for the claims before the Tribunal, and then, having done that, carrying out a check that there has been a fair opportunity for the parties to make focused submissions once those matters have been expressly identified.

In the Second Claim, the OPH took place at a very early stage of the proceedings: the Claim and Response had been served. Disclosure had not taken place. Similarly, in the First Claim, there were outstanding issues regarding disclosure: applications for disclosure made by the Claimant in respect of the First Claim were determined to be ‘premature’ because the OPH was not the final hearing, notwithstanding the fact that, potentially, it had determinative results. In addition, although evidence was heard about one discrete point, the Judge had not heard all the evidence about all the claims and issues, including, importantly, key evidence from the Claimant and, on behalf the Respondent, Mr Bourrette. As the Judge properly acknowledged, in discrimination claims, where there is a material dispute of fact, real care must be taken in dismissing claims without having heard relevant evidence. The reasons for that are clearly set out in the following much quoted passage from Lord Steyn’s judgment in Anyanwu as set out above.

Applying those principles, and those discussed above at paragraphs 59-88, I consider that it was an error for the Judge to consider the Second Claim in this case. Although there had been some correspondence about whether the Claims should be considered together, that issue had not been resolved. Further, the notice of the OPH related to the First Claim only, the preliminary hearing in respect of the Second Claim having been listed for a date in November later in the same year. As a result, there was not clarity about the scope of the issues to be determined by the Judge.

The procedural rules set out a structure through which Claims and Responses are accepted and through which applications may be heard and considered. Applying those principles, the Claimant should have received 14 days’ notice of the application to strike out the Second Claim. Whilst clear notice of that application had been given in the First Claim, such a notice had not been given in respect of the Second Claim. Although there is strength in the Respondent’s submission that, under s.37, a strike out may be considered at, “any stage of the proceedings” and, that, over the Preliminary Hearing and through submissions, the Claimant was given a ‘reasonable’ opportunity to make submissions about the identified issues, there did not appear to be, at any stage, express identification of the fact that the application was to strike out both claims, (because the determination of the issue under s.39 was, on one analysis, determinative of both) and for parties to then make submissions on the consequences of the decisions made upon the Second Claim.

There was no identification within the Reasons of some of the matters which were relevant for the Judge to consider prior to striking out the claim: issues had not been identified; witness evidence had not been exchanged; disclosure had not taken place. It does not, of course, follow that had the Judge considered these matters, and the parties specifically addressed them, he would not have still determined that the Second Claim should be struck out. He was, however, in my judgment required to consider these points, together with any others that may have been raised had the Second Claim been before the Tribunal in a manner which was in accordance with the ET Rules of Procedure 2013.

I consider that it was an error, a serious one, to proceed to strike out the Second Claim without giving notice of that strike out application in the rules and allowing a reasonable opportunity for the Claimant to consider that application (based as it was on the consequence of the s.39 point). I therefore allow the appeal in respect of Ground 1.

Even allowing for the breadth of the Tribunal’s discretion in s.123(3) of the EqA 2010, I consider that the Judge erred in determining this issue in this case. In reaching that decision, and mindful of the important principles set out above regarding the role of an appellate Tribunal, I recognise that the Judge considered the Claimant’s knowledge of how and when to issue discrimination claims (paragraphs 115-119); 129; her access to resources and legal advice (paragraph 128); the Claimant’s knowledge of relevant events and her allegations that relevant information had been withheld from her or disclosed late (paragraphs 121 -125; 131). This Tribunal must be, and has been, cautious in not overstepping the remit of its function.

However, reading the decision fairly, and as a whole, in this case I consider that the Judge erred because he failed to consider matters which were relevant to the exercise of the discretion. Further, I consider that he erred because he appeared to have been influenced by matters which could not, or should not, have been relevant to the exercise of that discretion and at this relatively early stage of the proceedings:

As noted above, the Tribunal made a determination about whether the Claimant had undertaken the Hogan test and not processed through GCAS in circumstances which merited much greater caution. As noted above, the Judge had not heard evidence from Mr Lacour, but imputed to him an error. In addition, the findings made were inconsistent with documentary evidence in the form of an email from him of 15 June 2018.

For some of the same reasons set out above in respect of Grounds 1 and 2, I consider that the Tribunal erred in not separately adjudicating upon the race discrimination claim. The importance of the points made in paragraphs 116 and 117 above also apply to the analysis of this ground of appeal, as they did to Grounds 1 and 2. Specifically, the Claimant’s First Claim was issued on 1 November 2020, therefore, within 3 months of the meeting on 29^th September 2020 when she asserted she was given information relevant to that claim in her meeting with Mr Dutruit about the potential involvement of racial issues. There is no identification of that important point within the Reasons. That is a significant omission. That fact was a highly relevant one to whether time should be extended for the race case, particularly having regard to Afolabi. and one, in my judgment, which has come about because of a failure to adopt an approach such as that set out in paragraph 117 above so as to avoid the type of risks identified in paragraph 116.

Finally, by Ground Recast 6(1), it was contended that it was perverse of the Tribunal to find, at paragraph 119 of the Reasons, that the Claimant had submitted a claim in June 2018 against Barclays that was in respect of her non appointment by the Respondent.

In my judgment, paragraph 119 of the Reasons does not read well and its meaning is not completely clear. However, on balance, and having regard to the decision as a whole, I accept the Claimant’s submissions in respect of this ground of appeal. I consider that the Judge erred in conflating the claims the Claimant against Barclays regarding post-termination victimisation with information relevant to the bringing of proceedings against the Respondent in respect of its own actions. There was no evidence about the specific content of the claims made against Barclays before the Tribunal (save for the witness statement the Claimant disclosed). In addition, and importantly, chronologically, the Claimant issued proceedings in June 2018 against Barclays, prior to the time when the decision not to appoint her was taken by the Respondent, and certainly well before the evidence suggested that she became aware of that decision.

As to disposal, I have considered written submissions from both parties, in addition to further correspondence from them about the other party’s submissions.

Both parties submitted that I should remit the case. I agree. For example, I consider that more than one outcome is possible in respect of grounds 1, 2 and 4. The consequences of the decision regarding s.39 of the EqA 2010 will need to be carefully considered in respect of the separate claims. How, and when that is done is a matter for the Tribunal to determine. The Tribunal will also need to consider how and when the issues relating to time limits and applications for strike out are determined.

The Respondent submitted that the claims should be remitted to the same Tribunal. The Claimant submitted that the case should be remitted to a different Tribunal and invited me to direct that it should be remitted to a different region. In addition, the Claimant invited me to direct that the claims should be remitted for a final hearing.

Having regard to the principles set out in Jafri v Lincoln College [2014] ICR 920 and Sinclair, Roche & Temperley v Heard [2024] IRLR 764, I consider that the appropriate disposal is to remit all four ground of appeal to a differently constituted Tribunal. As the Claimant submits, perversity has been established. In addition, I consider that the Judge, through a mini trial of issues, expressed a clear view as to the merits of the Claimant’s claim and, on the Respondent’s case, and appeared to have accepted the Respondent’s case, advanced in accordance with the tenor of the submissions summarised in paragraph 90. A ‘rethink’ of those matters would be difficult and, even if it could take place, may not retain the confidence of both parties. I consider that the case should be remitted to a differently constituted Tribunal. However, it is not the role of the EAT to go further than that direction. How the Tribunal complies with it is a matter for the Tribunal. Finally, I have apologised to the parties for the time taken to provide this Judgment to them.