Nolan v Balfour Beatty Engineering Services (Trade Union Membership) [2011] UKEAT 0109_11_1910

EAT
Nolan v Balfour Beatty Engineering Services (Trade Union Membership)
[2011] UKEAT 0109_11_1910 · 2011-10-19
[1]This case arises from an allegation that prior to about February 2009, a blacklisting system was operating in the construction industry. The existence of a database, giving rise to the allegations, became known at that time.[2]Mr Nolan alleges that his failure to secure certain jobs for which he applied on 13 September 2001 and on 20 June 2006 was due to personal data relating to him being on that database.[3]This is an appeal from the judgment of an Employment Tribunal sitting at Manchester, Employment Judge Brain, registered on 21 July 2010, finding that whilst it was not reasonably practicable for the Claimant’s claims to be presented within the relevant time limits, they were not presented within a reasonable period thereafter. For convenience, I will continue referring to parties as Claimant and Respondent.[4]The issue for me was whether or not the Tribunal had erred in law in determining that the claim was not presented within a reasonable period after the expiry of the three month time limit. Background[5]The Office of the Information Commissioner (‘ICO’) wrote to the Claimant by letter dated 17 March 2009, which advised him that(a) ICO investigators had recovered certain documentary evidence from the premises of an organisation called “The Consulting Association” (“TCA”) which indicated that a number of construction companies subscribed to a database operated and held by them, and(b) to access any information on that database relating to him, he required to fill in a form provided and provide certain copy identification documents. Their letter was evidently in response to him having enquired of them how he could access any information about him that was on the database.[6]On 8 May 2009, i.e. almost two months after receipt of the ICO’s letter, the Claimant sent the relevant form and copy identification documents to the ICO. By letter dated 12 May 2009, the ICO replied advising that they had identified information on the TCA database relating to him and providing him with a copy of the relevant entries. Those entries included information about his union membership, about his alleged involvement with ‘issues’ which had arisen in connection with a construction contract in 1998/9 and about his two unsuccessful job applications in 2001 and 2006. The Claimant has been a union member for many years.[7]On 28 July 2009 - eleven weeks after receipt of the documents sent by the ICO and some four and half months after receipt of the letter from them advising him how to go about accessing any information about him on the TCA database - the Claimant presented a form ET1 to the Employment Tribunal. The form was completed in manuscript and at paragraph 5.2, stated:
“I APPLIED FOR EMPLOYMENT AS AN ELECTRICIAN IN SEP 2001 AT THE PFIZER SITE IN KENT VIA BMSL AGENCY AND IN JUNE 2006 AT HANDSWORTH DEAN SITE IN NEWCASTLE. SINCE THEN I HAVE LEARNED MY NAME IS ON A DATA BLACKLIST WITHOUT MY PERMISSION TO ENABLE EMPLOYERS TO CHECK WHETHER JOB APPLICANTS HAD A HISTORY OF TRADE UNION MEMBERSHIP AND/OR ACTIVITIES, THE EMPLOYER WOULD THEN REACH A DECISION AS TO WHETHER TO OFFER EMPLOYMENT ACCORDINGLY. THE RESPONDENT OBTAINED MY UNION DETAILS AND DECIDED NOT TO EMPLOY ME. I BELIEVE THIS CONSTITUTES UNLAWFUL REFUSAL OF EMPLOYMENT ON GROUNDS RELATED TO UNION MEMBERSHIP AND INFRINGES ON MY HUMAN RIGHTS. THE ABOVE REJECTIONS OCCURRED MORE THAN 3 MONTHS BEFORE I RECIEVED (sic) MY DATA FILE FROM THE INFORMATION COMMISSIONER AND THE DATE OF SUBMISSION OF THIS CLAIM I BELIEVE HOWEVER IT WAS NOT REASONABLY PRACTICABLE FOR ME TO SUBMIT THIS CLAIM AT AN EARLIER STAGE AS THE ACTIVITIES OF THE CONSULTING ASSOCIATION HAVE ONLY RECENTLY COME TO LIGHT IN THE PRESS FOLLOWING WHICH THE INFORMATION COMMISSIONER SET UP A HOTLINE TO DEAL WITH ENQUIRIES RELATING TO THE DATA BLACKLIST.”
[8]Colin Carr, of Unite the Union, was named as the Claimant’s representative in the form ET1 but judging by the Employment Judge’s discussion in paragraph 34 of his reasons, he accepted that the Claimant himself presented the form. He made no finding of who completed it; the Claimant does not appear to have given any evidence about who completed the form. What, however, is clear is that whoever completed it must have been aware of the relevant statutory provisions ( Trade Union and Labour Relations Act 1992 ss. 137-139), given the allegation of “unlawful refusal of employment on grounds related to union membership” and to it not having been “reasonably practicable” to submit the form earlier. Further, the approach of the Claimant both before the Employment Tribunal and before me was that he should be regarded as a lay litigant and that he was responsible for the ET1.[9]The Employment Judge found that the reason for the Claimant’s delay between 16 March 2009 and 8 May 2009 was, according to the Claimant that:
“20 … his mother had died just before Christmas 2008. He also had the misfortune to suffer a fire at his home and said that he was preoccupied “trying to put his house together”
. He said that he was not coping very well at that time.”[10]Regarding the delay between receipt of the information from the ICO in May 2009 and the presentation of his form ET1, the Employment Tribunal found that the Claimant’s explanation was: “… that was caused by his trying to seek legal advice and endeavouring to find out what action the union were prepared to take.” and that in that explanation, the Claimant was referring to the following. He contacted “a firm of solicitors” (the Claimant gave neither their name nor the date of his contact with them), “who wanted £5,000 on account of costs” (paragraph 21). There is no finding that he actually sought or was given any advice by that firm. Also, he contacted “a friend who is a solicitor dealing with corporate law matters” (the Claimant again gave neither the name of the solicitor nor the date of his contact with him) and he directed him to the Citizens Advice Bureau (paragraph 21). There is no finding that he received any other advice from that friend. So far as the CAB was concerned, they “advised him to take action under the Data Protection Act 1998” (paragraph 21) and there is no finding that they were asked or advised about any employment claim including any claim of the type subsequently articulated by the Claimant in his form ET1.[11]As to what efforts the Claimant made to progress matters once he had the information from the ICO, the Employment

Judge found:

“… upon receipt of the documentation from the ICO, (the claimant) had ‘spoken to the lads and gone to union branch meetings’. He said he was telephoning his colleagues two or three times a week ‘to see which way matters were going’. At the time arrangements were being put in hand for a merger between Unite and the TGWU. The Claimant said that he was “not getting a lot back.’ ”
[12]The Claimant asserted that he believed that he had three months from the date upon which he had acquired the file from the ICO within which to present his claim. He also, as found by the Employment

Judge at paragraph 23:

“… generally knew that there was a three month time limit ‘to do with Employment Tribunals’.”
The Tribunal’s Judgment[13]The Employment Judge found that it was not reasonably practicable for the Claimant to have presented his claim within three months of the events complained of and that finding was not appealed against.[14]The Claimant appears to have first known about the existence of the database in March 2009; the ICO’s letter of 17 March 2009 told him of the discovery of its existence and of how to go about finding out if he featured on it. By 14 May 2009, he had in his possession a copy of the entries on the database relating to him.[15]The Employment Judge regarded the start of the period of his consideration as being 14 May 2009.[16]At paragraph 39, the Employment Judge rejected the Claimant’s evidence that he believed that he had 3 months from the date of receipt of the copy of the database entries relating to him, within which to lodge a claim. He did so because of what he considered to be a conflict between that assertion and the terms of his form ET1. Evidently, the Claimant’s explanation in evidence and the manner in which he gave it was not, in the assessment of the Employment Judge, such as to overcome that conflict. In short, he did not believe him.[17]Separately, in the same paragraph the Employment Judge found that even if the Claimant did hold such a belief, that did not show that he presented his claim within a reasonable time. That was because he was a longstanding member of a trade union and had facilities available to him to find out what his rights were, but failed to do so; that was not reasonable.[18]Earlier in his reasons, at paragraph 38, the Employment Judge had observed that the simple fact of making a mistake about the time available for presentation of a complaint could not, of itself, be sufficient to show that it was presented within a reasonable period, given the authorities to the effect that ignorance of the primary time limit is not enough to show that it was not reasonably practicable to present a claim in time ( Wall’s Meat Co v Khan [1979] ICR 52). The Employment Judge said:
“If mere ignorance of the time limit has been held not to prevent the presentation of a claim from being reasonably practicable within the prescribed period, it is difficult to see how it can avail the Claimant, when considering whether the claim was presented within a further reasonable period, to argue that he was mistaken in his belief that he had a certain period within which to present his claim.”
Those comments were, in the event, obiter , since, as above noted the Employment Judge found that the Claimant did not in fact hold a mistaken belief about the relevant time limit.[19]He then had regard to the need for the Claimant to seek advice, to the steps he had taken, and to the extent of the delay.[20]As was to be expected in the circumstances, the Employment Judge focussed his considerations on the period between the middle of March 2009 and presentation of the complaint. He, perhaps generously, appears to have accepted that the delay between March and May was due to the personal difficulties encountered by the Claimant relating to the death of his mother and his house fire, both of which had occurred in 2008. The Employment Judge then considered the period after receipt of ICO’s letter of 12 May and explained, at paragraph 41:
“… he attributed the delay after receipt of the ICO’s letter of 12 May 2009 to the need to seek advice. In my judgment an eleven week delay is unreasonable and it would be far too generous to employees to allow a slippage of time of this magnitude and to consider such to be reasonable.”
[21]The Employment Judge then elaborated on his explanation, in paragraph 42, in which he accepted that the claim was complex and some legal investigation after the receipt of the ICO information was required, but:
“… however, there was precious little evidence from the Claimant as to what he actually did following receipt of the ICO’s file on 14 May 2009 other than speak to Trade Union colleagues. It cannot, in my view, be sustainable to seek to argue that an eleven week delay is reasonable in the circumstances even taking into account the need to seek advice and guidance. On the Claimant’s own evidence, it appears that there was some frustration at the slow progress of the Union advice even before the Claimant himself received his own file from the ICO. The Claimant, for whatever reason, simply sat on his hands and in my view did so for too long.”
Relevant Law[22]The Claimant’s claims would fall within section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992 as being, essentially, that the Respondent had acted contrary to section 137(1):
“137(1) It is unlawful to refuse a person employment – (a) because he is, or is not, a member of a trade union..” giving rise to a right of complaint to an employment tribunal (s.137(2)) and the time limits set down in section 139, accordingly, applied: “139 An employment tribunal shall not consider a complaint under section 137 … unless it is presented to the tribunal – (a) before the end of the period of three months beginning with the date of the conduct to which the complaint relates, or (b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as the tribunal considers reasonable.”
[23]These provisions demonstrate a legislative intention that claims should be presented promptly – reflecting the general principle that it is in the public interest that litigation should be progressed as efficiently as possible - and that claimants should not be permitted to delay in presenting them once whatever the obstacle was that prevented timeous presentation has been removed. Accordingly, in circumstances such as the present case, if the complaint is not presented within the three month time limit, an employment tribunal must first ask whether the employee has established that it was not reasonably practicable for the claim to have been timeously presented. If the employee fails to discharge that burden, the tribunal need go no further; the claim is time barred. If, however, the employee does establish that it was not reasonably practicable to do so, then the tribunal requires to ask whether it was presented within such further period as the tribunal considers to have been a reasonable one. That is a matter for the judgment of the employment tribunal and, absent perversity, it will usually be very difficult to challenge its judgment on that matter on appeal. I would refer, in that regard, to Lindsay J, in Howlett Marine Services Ltd v Bowlam [2001] IRLR 21 , at paragraph 24:
“The legislature has not, for example, identified any characteristics of any period which are to be taken to make the elapse reasonable or unreasonable. That points to a difficulty for an Appellant. It will not be enough for an Appellant to say, for example, that the Employment Tribunal could well properly have concluded other than it did. Rather, the Appellant needs to show that the Employment Tribunal took into account material which it should not have taken into account in the exercise of its discretion or failed to take into account that which it should have taken into account, or otherwise that it erred in principle of law or held in such a way that no reasonable Tribunal properly instructing itself could have concluded as it did.”
[24]I was referred to a number of authorities in the course of the appeal, mostly in relation to the question of the meaning of reasonable practicability. As to the second question to which section 139(b) gives rise, it is the subject of discussion in three of them: Marley v Anderson [1994] IRLR 152, Northumberland County Council v Thompson [2007] UKEAT/0209/07, and Cullinane v Balfour Beatty Engineering Services Ltd & NRL Ltd UKEAT/0537/10/DA.[25]In Marley , the Court of Appeal stressed that what was a reasonable time for presenting a late complaint – where it was not reasonably practicable to have presented it timeously - depended on the circumstances of the case and, perhaps unsurprisingly, that there were no rules as to particular numbers of weeks that would or would not be regarded as reasonable.[26]In the Northumberland County Council case, it was common ground that it was not reasonably practicable to present a timeous claim and the issue for the Employment Tribunal was whether or not it had been presented within such further period as was reasonable. Silber J, sitting in this Tribunal took the view that: “… matters of crucial importance in determining the reasonableness aspect (rather than the ‘practicable’ aspect) of the test of ‘ reasonably practicable’ are likely to be of at least substantial importance in ascertaining if a Claimant has after the end of the three-month period launched proceedings ‘ within such period as the tribunal considers reasonable’ ” (paragraph 13).[27]On the basis of that reasoning he found assistance in the approach of the Court of Appeal in Marks and Spencer v Williams Ryan [2005] IRLR 562 (a decision on reasonable practicability) and in London International College v Sen [1993] IRLR 333 (also a decision on reasonable practicability), to which he referred in paragraphs 14 and 15:
“14 … This exercise entails an investigation of: what the employee knew and what knowledge the employee should have had if he or she had acted reasonably in all the circumstances while ignoring the practicability aspect of that definition. In Marks and Spencer v Williams Ryan … Lord Phillips MR in a judgment with which Latham and Keene LJJ agreed, explained at paragraph 21 (with my underlining added) that: ‘… it has repeatedly been held that, when deciding whether it was reasonably practicable for an employee to make a complaint to an Employment Tribunal, regard should be had to what, if anything, the employee knew about the right to complain to the employment tribunal and of the time limit for making such a complaint. Ignorance of either does not necessarily render it not reasonably practicable to bring a complaint in time. It is necessary to consider not merely what the employee knew, but what knowledge the employee should have had had he or she acted reasonably in all the circumstances. ’ 15. It is noteworthy that the Master of the Rolls refers to the requirement that it is necessary for these matters to be considered. The decided cases require the Employment Tribunal considering whether it has been “reasonably practicable” for an employee to have brought proceeding within the three-month period to focus on and then reach conclusions on the state of mind of the employees. Indeed, in London International College Limited v Sen [1993] IRLR 333, Sir Thomas Bingham MR explained (with my underlining added) … ‘ … it would seem to me irrelevant whether or not the complainant had consulted a solicitor. That would seem to me to be a possible approach to the language of the section but it is one which previous authority has firmly rejected and such authority has concentrated on the state of mind of the prospective complainant and the extent to which he understood that position. ’”
[28]Silber J appears to have been at pains to stress the need for the employment tribunal to consider what, throughout the period of delay prior to the presentation of a claimant’s complaint, was his state of knowledge. I would respectfully agree that the tribunal must do so.[29]Cullinane concerned the effect of fault on the part of a claimant’s advisers but at paragraph 16, Underhill P made some general observations regarding assessment of a reasonable period for presentation of a late claim:
“16 … The question at ‘stage 2’ is what period – that is, between the expiry of the primary time limit and the eventual presentation of the claim – is reasonable. That is not the same as asking whether the claimant acted reasonably; still less is it equivalent to the question whether it would be just and equitable to extend time. It requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted – having regard, certainly, to the strong public interest in claims in this field being brought promptly, and against a background where the primary time limit is three months.”
[30]In summary, when deciding what would have been a reasonable time within which to present a late claim, employment tribunals plainly require to bear in mind the context, namely a primary time limit of three months and the general principle that litigation should be progressed efficiently and without delay. They then require to consider all the circumstances of the particular case, an exercise which will inevitably include taking account of what the claimant did and what he knew about time limits, what he, reasonably, ought to have known about them, and they require to ask themselves why it was that the further delay occurred. The appeal[31]There were four grounds of appeal in the Claimant’s notice and Mr Toms made submissions in support of each of them.[32]First, he submitted that the Tribunal had held, at paragraph 38, that a claimant’s erroneous belief as to the time for presentation of a claim is not a factor that it can take into account when assessing what would have been a reasonable period within which to present it. The correct approach was, he submitted, as per Northumberland County Council , to ask what the claimant knew and what knowledge he should have had, had he been acting reasonably. The Tribunal had, he said, failed to do so.[33]Secondly, he submitted that the Tribunal’s conclusion that the Claimant had not in fact entertained a belief that he had three months from 14 May 2009 within which to present his claim, was perverse. It was wholly improbable that someone who knew that the claim required to be presented within a certain period would, nonetheless, deliberately present it late. That, he submitted, was in effect, what the Tribunal had found. He submitted that it was unfair and perverse to use the contents of a claim form completed by the Claimant, who was an unqualified litigant in person, as the basis for rejecting his evidence. It was, on the contrary, wholly understandable that an unqualified litigant in person may well consider that he had three months from the date of receipt of necessary information within which to bring a claim. Further, the Tribunal’s erroneous rejection of the Claimant’s evidence on this matter was likely to have had a significant material impact on its overall decision.[34]Thirdly, Mr Toms submitted that the Tribunal erred in law in concluding as it did at paragraph 41. The wording of that paragraph – in particular the reference to “employees” – showed that the Employment Judge had wrongly approached matters on the basis that there was a single rule applicable in all cases whereas the authorities showed that that was not so.[35]Fourthly, he submitted that the Tribunal had concluded that the Claimant’s actions were limited to speaking to trade union colleagues but that was wrong and perverse, as was the conclusion that there was precious little evidence from the Claimant as to what he did. Those conclusions were, he submitted inconsistent with the earlier findings in fact; he referred to those findings as showing that the Claimant had sought and obtained advice from five different sources. That being so, it was perverse to conclude that he had sat on his hands.[36]For the Respondent, Mr Dobie submitted that the appeal should be dismissed. There were no indications that the Tribunal had erred in law and none of the grounds of appeal were well founded.[37]Regarding the first ground, it was ill founded; all that the Employment Judge was saying was that a person who makes a mistake about a time limit should not be in any better a position than someone who is wholly ignorant of it. He was not indicating that a mistake about a time limit was necessarily irrelevant.[38]Regarding the second ground, there was no proper basis on which it could be said that the Employment Judge’s conclusion was perverse. The rhetorical question posed by the Claimant was not helpful. It was plain that the Tribunal had, on the evidence, concluded that the Claimant could not be believed, given the content of his ET1. It was open to him to do so.[39]Regarding the third ground, whilst the use of the word “employees” was not particularly apt, when the whole of the reasoning was considered, it was clear that there had been a proper assessment of the particular facts of this case and that it was on those facts that the case had been decided. There was no question of the Employment Judge having suggested that a particular period of weeks was or was not, in all cases, reasonable or unreasonable.[40]As to the fourth ground, the Claimant had not surmounted the high hurdle of perversity. The Employment Judge had been generous to ignore the first two months – March to May – given the time that had elapsed since the events in the Claimant’s personal life that were referred to. He had then looked at what the Claimant had done between May and the presentation of his claim and he had done little; he had not sought and obtained advice from five sources. He neither sought nor obtained advice about claiming from the ICO. So far as the firm of solicitors was concerned, they were not identified and there was no question of him actually obtaining advice from them. The same was to be said of the corporate lawyer friend. As for the CAB, it was evident that the Claimant had only explored Data Protection issues and had not sought employment law advice. Regarding his union, he had not sought advice; the findings went no further than showing that he had chatted to colleagues who were in the same boat. The judge was entitled to find that the evidence on these matters was sketchy. Whilst it may not be the case that there is an onus on a claimant to establish that the complaint was presented within a reasonable time, it is, at the very least, for the claimant to place before a Tribunal material on which it can make that assessment and the material in this case did not support the view that the Tribunal ought to have decided differently. Discussion and Decision[41]I am satisfied that this appeal is not well founded and I accept the Respondent’s submissions.[42]The overwhelming problem for the Claimant was that on which the second ground of appeal was focussed, namely that the Employment Judge did not believe him when he said that he thought he had 3 months from receipt of the ICO information within which to present a claim. The judge heard his evidence and compared it with a document which I note that Mr Toms said had been completed by him, namely his ET1. Its terms were such as to plainly entitle the Employment Judge to take the view that the Claimant certainly knew, when he presented his complaint, that it was late. There would have been no need to refer to questions of reasonable practicability otherwise. Further, there is a reference to a three month period before receipt of the ICO file as being relevant without any reference to or hint of a belief that the complaint was in fact being presented in time. That being so, it seems not at all surprising that the Claimant’s oral evidence on this point was rejected. I would also observe that the Claimant appears not to have given any explanation of the source of his alleged mistaken belief – this is not a case of erroneous advice having been given to him by a third party. There is no question of the Employment Judge having erred in law.[43]That being so, the circumstances were that a Claimant who knew that the time limit for presenting his claim had expired took eleven weeks to present his ET1. He was evidently capable of attending to its presentation himself and doing so in terms which include a degree of legal technicality, as I mention above. The only reason put forward by him for the delay was that he needed to obtain advice but as Mr Dobie pointed out, he did not actually do so. There was no finding that he obtained any advice about presenting this claim at any time at all. Further, I agree that on the Tribunal’s findings in fact, the Employment Judge was plainly entitled to take the view that there was but a sketchy picture presented and the overall impression was that the Claimant ‘sat on his hands’ for too long.[44]Regarding the first ground of appeal, I consider that Mr Toms’ reading of the part of the reasons to which he refers is not tenable. In paragraph 38, the Employment Judge does no more than point out that if all that a claimant says is that he made a mistake about the time limit, that is not likely to be sufficient when considering whether or not he presented the complaint within a reasonable time; more is needed, just as is usually the case when the only reason given in support of an assertion that it was not reasonably practicable to present a claim within the primary time limit is ignorance. In those observations he was, I consider, correct.[45]Regarding the third ground of appeal, if the only reason given by the Employment Judge had been that as a generality, eleven weeks is too generous a slippage to be allowed, there would have been some merit in the point. However, that is not what he said. It is plain from a reading of the whole judgment that the Employment Judge was careful to consider the particular facts of this particular case and it was on those facts, not on any sense of what ought to apply across the board, that he made his decision.[46]Regarding the fourth ground of appeal, to an extent I have already covered this. It is plain from the findings in fact that the Employment Judge was entitled to take the view that the Claimant failed to progress matters as he could and should have done – all in circumstances where he knew that his claim was late. The picture was not one of such relevant activity on his part as to show that no reasonable Tribunal could have concluded that his claim was not presented within a reasonable time.[47]Assessment of what amounts to a reasonable period for presentation of a late claim is, as I have already discussed, very much a matter for the judgment of the Tribunal of first instance. This Tribunal made findings in fact which were open to it on the evidence, it did not take into account irrelevant material, all relevant factors were taken account of and it reached a view on the matter which, in the circumstances, was clearly open to it. Its decision cannot be impugned. Disposal[48]In these circumstances, I will pronounce an order dismissing the appeal.