UK: Court of Appeal rulings flag risk of delayed discrimination claims from rejected job applicants

Two recent Court of Appeal decisions highlight the risk of employers facing tribunal claims from rejected job applicants long after the usual three month time limit has expired.  Tribunals have a discretion to extend time where this is just and equitable, for example where on the expiry of the primary time limit the claimant remained unaware of important facts material to the viability of their claim.  These could be the characteristics of the successful candidate or, in a victimisation case, the contents of a bad reference relied on to reject the claimant.  Time may be extended even if the claimant suspected discrimination at an earlier point.  Employers should note that there is likely no advantage to be gained in delaying confirmation of a job applicant's rejection and/or relevant details of the successful candidate;  uncooperative behaviour is also likely to colour the tribunal's view of the employer.

In HSBC Bank plc v Chevalier-Firescu a job applicant was told in 2018 that she had been unsuccessful due to a bad reference from her previous employer.  She only discovered the content of the reference (referring to her discrimination claims against her previous employer and describing her in discriminatory terms) two years later.  The Court of Appeal considered that the tribunal had erred when exercising its discretion not to extend time, as it had failed to properly consider when the claimant had the requisite knowledge of the essential elements of her claim.  It had failed to explain its reasoning that the claimant was fully aware of the elements of her claim in 2018 or show that it had taken proper account of the fact that she had only learned information to support her claims in 2020.  The Court considered that it is a question of degree whether suspicion of the facts which could found a valid claim is sufficient to mean the claimant should have brought proceedings;  this will depend on where the particular suspicion sits on the spectrum between certain knowledge (obviously sufficient) and mere speculation (obviously not).  When exercising its discretion to extend time, the degree of knowledge or suspicion is in any event only a starting point as the tribunal should also consider what the claimant should have known or suspected, whether the delay was nevertheless reasonable, and anything else relevant to justice and equity.  For the claimant in this case to have sufficient knowledge to bring proceedings against HSBC, it was not enough for her to know or suspect that she had been given a discriminatory reference by her ex-employer;  she also had to know or have sufficient reason to suspect that HSBC's rejection was motivated by discriminatory considerations.

In Jones v Secretary of State for Health and Social Care, the employer had inadvertently failed to confirm the claimant's rejection for a job until just over three months after it had appointed someone else.  The Court considered that the claimant was justified in not issuing a claim at this point, however suspicious he was about the reasons for delay.  Following the employer's repeated refusal to confirm the ethnicity of the successful candidate, the claimant then issued his claim within a further three months, and it was only at the preliminary hearing some months later that the employer finally confirmed the appointee's ethnicity.  The tribunal had ruled that the claimant had had sufficient information to bring a claim when informed of his rejection, as he was already suspicious by that point, and so it refused to extend time.  The Court of Appeal disagreed – being told he had been rejected was plainly not enough in itself to justify the issue of proceedings, nor was the delay in notifying him of the outcome, however suspicious he might have been about it.  The Court was also less willing than in Chevalier-Firescu to accept that grounds for suspicion, or a firmly held belief based on suspicion, is a relevant factor. It noted that until 2014 the statutory questionnaire procedure enabled prospective claimants for discrimination to ask questions, with failure to answer them giving rise to the possibility of adverse inferences – a procedure which is no longer available.  Although claims should be brought promptly, the tribunals should not encourage cases to be brought on 'mere suspicion'.

Employers should also note that the Employment Rights Bill currently progressing through parliament proposes extending the time limit for discrimination (and all other employment tribunal) claims to six months.