And speaking of introducing new ideas brings me to the case of HSBC Bank Plc v Chevalier-Firescu 2024, tin which he Court of Appeal had to consider whether the rejection of a job application could amount to unlawful discrimination — after fresh information arrived two years later.

Mrs Chevalier-Firescu (CF) applied for a job at HSBC Bank PLC in April 2018. She had previously worked for Barclays Bank but had recently been made redundant during her maternity leave and had filed claims to the Employment Tribunal, including sex discrimination, against Barclays and her former manager. 

In May 2018, Mrs CF was congratulated early on for her appointment at HSBC, and informed “not to rush to sign for other banks, as HSBC would be a bit slow in finalising the contract but… they really wanted her on board”. However, she later received notice that her application to HSBC was unsuccessful despite the consistently good interviews and feedback during the recruitment process. Suspecting that a negative reference from Barclays might have influenced the outcome, Mrs CF submitted a Data Subject Access Request (DSAR) to HSBC. However, the results of that request did not reveal any adverse reference or misconduct.

However, in 2020, Mrs CF received additional information from a renewed DSAR which was ‘missed’ in HSBC’s previous search. This revealed that a senior HSBC Manager had intervened in her recruitment process after becoming aware of her ongoing legal action against Barclays, ultimately leading to her unsuccessful outcome. Based on this, Mrs CF then filed a claim for discrimination to the ET.

At first instance, the ET dismissed her claim, finding it out of time. The ET held that Mrs CF had missed the three-month limitation period and that the delayed disclosure did not materially alter her awareness of the facts in 2018. 

Mrs CF then appealed this decision to the Employment Appeal Tribunal, based on the fact that the information she received in 2020 changed her knowledge of the potential lawful action taken against her; specifically that HSBC’s actions, not Barclays’, were potentially discriminatory. 

The EAT upheld Mrs CF’s claim, holding that the ET erred in its approach to strike out her claim. The EAT ruled that the new disclosure revealed previously unknown actions by HSBC itself, which were central to the claim, and thus merited reconsideration. 
HSBC then appealed this decision to the Court of Appeal, arguing that the EAT had been unduly critical of the ET’s refusal to extend the time in which the claim could be brought.

The CA dismissed this appeal. The Court found that the ET had failed to properly assess whether Mrs CF knew all the “essential elements” of her claim in 2018 and did not sufficiently consider the impact of the 2020 disclosure, or to consider that Mrs CF only learned of significant information two years later when she received further disclosure from her DSAR. The CA held that Mrs CF’s original claims should be reheard at a different tribunal to consider whether or not it should extend the time for her to make a claim on just and equitable grounds.

This case shows how recruitment decisions must be fair, transparent and free from bias, including any prejudice based on a candidate’s involvement in previous legal claims. It shows how treating someone less favourably, such as rejecting them from a role due to previous legal action, can amount to victimisation. Employers must ensure that hiring decisions are based solely on merit and not influenced by knowledge of past disputes or complaints.