Cullinane v Balfour Beatty Engineering Services Ltd & Anor (Jurisdictional Points : Extension of time: reasonably practicable) [2011] UKEAT 0537_10_0504

EAT
Cullinane v Balfour Beatty Engineering Services Ltd & Anor (Jurisdictional Points : Extension of time: reasonably practicable)
[2011] UKEAT 0537_10_0504 · 2011-04-05
[1]In early March 2009 the Information Commissioner’s Office announced that it had established that a body called the Consulting Association maintained a database of workers in the construction industry who were perceived as trouble-makers and that information from that database was made available to potential employers. The Appellant is an electrician who works in the construction industry. On or about 16 March he telephoned a hotline established by the Information Commissioner for workers who believed that they might have been blacklisted on that database, and on 25 March he was sent a copy of the information from it which related to him. On the basis of that information, he believed that at least three occasions in recent years on which he had been refused employment had been as a result of his appearing on the Consulting Association blacklist. One such occasion was in 2000, when the potential employer was Sir Robert McAlpine Ltd. Another was in 2006 when it was Balfour Kilpatrick, now Balfour Beatty Engineering Services Ltd, the First Respondent. It is, to anticipate, the latter episode which gives rise to the present proceedings.[2]The Appellant got in touch with his trade union, Unite, on 30 March to obtain advice on the courses open to him. He was given an appointment with its regional officer, Mr Passfield, on 29 April - that is, rather more than four weeks later. He saw Mr Passfield, accordingly, on that day. The following day, 30 April, Mr Passfield presented a claim on his behalf in the Employment Tribunal against Sir Robert McAlpine Ltd and its recruitment agents under sections 137 to 138 of the Trade Union and Labour Relations (Consolidation) Act 1992 . But in relation to the potential claim against the First Respondent he made instead an application on 1 May to the Legal Services Office of the Amicus section of the union. On 7 May they instructed Thompsons and it was not until 14 May that Thompsons issued proceedings against both the First Respondent and its recruitment agent, NRL Ltd, again under sections 137 and 138 of the 1992 Act.[3]The Respondents took the point that that claim was out of time. That issue came before Employment Judge Brain, sitting alone, in the Manchester Employment Tribunal, on 6 August 2010. He accepted the Respondents’ submission and dismissed the claim. Written Reasons were sent to the parties on 18 August.[4]This is an appeal against that decision. The Appellant has been represented before me by Ms Amanda Hart of counsel, who did not appear below. The Respondents have been represented by Mr Stephen Hardy of counsel, who appeared below for the Second Respondent.[5]I should start by referring to the relevant statutory provisions.[6]Section 137 provides that it is unlawful for an employer to refuse to employ a person because of, inter alia , his membership of a trade union; and section 138 makes similar provision in relation to the refusal of its services by an employment agency. In either case, an employee claiming to have been unlawfully treated can apply to an employment tribunal.[7]Section 139 (1) reads as follows:
“An employment tribunal shall not consider a complaint under section 137 or 138 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.”
That wording is, of course, substantially identical to that of section 111 (2) of the Employment Rights Act 1996 , which provides the time limit for bringing claims of unfair dismissal and which has generated a good deal of case-law. At this stage, it is necessary only to make the point that the process required under limb (b) requires a two-stage process - first, the Tribunal must decide whether it was reasonably practicable for the complaint to be presented within the primary time limit; and, secondly, if it finds that it was not, it must decide whether the claim was brought within such further period as it considers reasonable.[8]The Judge’s reasons for holding that the claim was out of time can be summarised as follows:(1) It was common ground that it was not reasonably practicable for the Appellant to bring a claim arising out of the blacklisting within the period of three months from when it occurred, since he was ignorant of it. It was also common ground that it was not reasonable for him to take any steps until the receipt of the information from the Information Commissioner’s Office on 25 March 2009. The real issue was, accordingly whether the period between 25 March and the eventual issue of proceedings on 14 May (some 6½ weeks) should be considered “reasonable”.(2) The Judge held that the Appellant had done all that he could reasonably be expected to do before the end of March 2009 - that is, by seeking the advice of his trade union.(3) However, he believed that the Appellant’s trade union had acted “dilatorily” in two respects - first, by not giving him an appointment until 29 April; and, secondly, by not issuing proceedings or having them issued until 14 May. At paragraphs 29 to 32 of the Reasons he said this:
“29. Unfortunately for the claimant, however, I find that matters were dealt with in a dilatorily fashion by the trade union after the claimant instructed them to deal with his case and called upon them for assistance. The trade union could not see him until the 29 April 2009. The claimant said that he was told by Mr Passfield that there were many such claims and that was the first appointment that could be offered 30. We did not have the benefit of hearing from Mr Passfield. There was therefore no evidence to corroborate the claimant’s case as to the pressure upon the trade union’s resources, why Mr Passfield could not see him until 29 April 2009 and why no-one else within the union could see him earlier 31. I take judicial notice of the fact that there are a number of trade union blacklist claims. However, there was simply no or no satisfactory evidence called on behalf of the claimant to explain the delay which effectively accounted for the whole of the month of April 2009 32. Further, after seeing the claimant on 29 April 2009, the union did not present his claim for a further fifteen days. That omission was all the more surprising given that a claim pleaded in very similar terms was presented the day after Mr Passfield had seen the claimant. The claimant could offer no explanation himself as to the reasons for the further delay. There was simply no evidence to explain it and no evidence of any change of circumstance between 29 April and 14 May 2009.” (4) He held that the unreasonable delay by the union must be treated as unreasonable delay by the Appellant himself. The Judge said this at paragraph 33: “It is incumbent upon a skilled advisor in such circumstances to act quickly once instructed by a claimant who is put on enquiry as to his right to bring a claim. A skilled advisor’s mistake as to the time limit does not avail a claimant in these circumstances. It is difficult to see, therefore, why, once a skilled advisor has been instructed, a claimant should be relieved from the consequence of that skilled advisor’s delay in the presenting the claim. The same principle must hold where the skilled advisor is at fault whether during the primary limitation period or further reasonable period”
He concluded at paragraph 34:
“This is an unfortunate outcome for the claimant who, I find, did all that he reasonably could himself to put in hand steps to have his claims determined. However, I find that a seven week delay between the claimant being put on enquiry on the one hand and the date of presentation of the claims is simply too long to be reasonable. I therefore find that the claims were presented out of time and they stand dismissed.”
[9]The Judge’s reasons are clear and systematic and I am reluctant to interfere with what was essentially a factual judgment for him to make. However, not without some hesitation, I have come to the conclusion that his reasoning was flawed. It was, as I have said, based on what he said was the absence of any evidence explaining two features -(a) the delay of a month in the Claimant being given an appointment with Mr Passfield, and(b) the fact that Mr Passfield was able to present a claim the very next day in the McAlpine case but passed the present case (which had, he believed, no significant differences) to his head office, which caused a further fortnight’s delay.[10]To take period (b) first, it would surely be odd if Mr Passfield had made a distinction between the two cases without any rational basis, and it is in fact clear from his internal note (which was before the Tribunal) that he did regard the two claims as different. It is in my view sufficiently apparent that he did so because in the McAlpine case the Appellant had in fact been taken on for a couple of days and then stood down, apparently without explanation, whereas in the present case he had not been offered a job in the first place. The former situation is obviously more directly suggestive of a blacklisting than the latter, and I can see why Mr Passfield, who is not a lawyer, wanted further advice before deciding whether the present case should be taken on while he felt sufficiently confident to make a decision in relation to the McAlpine case. I believe that that distinction between the two cases was sufficiently clear from the material before the Judge, and he erred in not considering it and, in effect, stigmatising Mr Passfield’s decision as unreasonable.[11]Although period (b) is the shorter of the two periods of delay relied on by the Judge, it is impossible to be confident that he would have reached the same conclusion on the basis of the first period only, and my conclusion is, accordingly, sufficient to require the case to be remitted. But Ms Hart submitted that the Judge’s decision in relation to the first period of delay was flawed as well. She said that he was wrong to say that there was no evidence before him explaining the delay in offering the Appellant an appointment, because the Appellant’s own evidence in the Reasons as recited, namely that Mr Passfield had told him that there were many blacklisting claims and this was the first appointment that could be offered, was both plausible and sufficient. The fact that it was hearsay evidence, rather than coming directly from Mr Passfield, did not mean that it should be excluded, particularly as the Judge evidently regarded the Appellant as a witness of truth; nor did it require to be, in the Judge’s term “corroborated”.[12]I can see some force in those submissions, but on balance I think they may not be entirely fair to the Judge. As I read the paragraphs in question, his point was not so much that the Appellant’s evidence should not be accepted as far as it went, but rather that it was simply too general: he wanted to know more specifically why it was not possible for the Appellant to be seen in less than four weeks, including why, if Mr Passfield was too busy, he could not be seen by someone else. That was the kind of detail which, in the absence of Mr Passfield, was not available. In view of my decision in relation to period (b), I need not reach a concluded view as to whether the Judge’s approach on this aspect was reasonable, but I can certainly see that it was unfortunate that the Appellant, or those advising him, did not think it necessary to put in any evidence from Mr Passfield.[13]The consequence thus far is that the case requires to be remitted. Mr Hardy sensibly accepted that if it was to be remitted it should be to a different Judge. I should say that Ms Hart went further and submitted that the Judge’s decision was perverse - that is to say that on the information before him the only conclusion to which he could properly have come was that the delay in question was reasonable. I am bound to say that on the material that I have seen I am not sure that I would have been as critical of either period of delay as the Judge was; but I am certainly not prepared to go so far as to say that on that material only one conclusion was possible.[14]I have considered whether it would save time and costs if I were to exercise my powers under section 35 of the Employment Tribunals Act 1996 and reach my own decision; but Mr Hardy was not happy with that course, and on balance I do not think that I should do so. It is probably better that an Employment Judge hear the matter afresh, with the Appellant no doubt learning the lesson of what happened the first time round and adducing fuller evidence than was before the Judge.[15]My conclusion thus far means that I need not express a view on Ms Hart’s other grounds of appeal, but there is one point that I ought to address because it will in principle arise at the remitted hearing. Ms Hart pointed out that the question which arises under the second stage in section 139 (1) (b) is couched simply in terms of what further period the Tribunal would regard as “reasonable”, and not, like the question under the first stage, in terms of reasonable practicability. She submitted that it followed that the “ Dedman principle” - namely that for the purpose of the test of reasonable practicability an employee is affixed with the conduct of his advisers (see, for the most recent review of the case law, Entwhistle v Northamptonshire County Council [2010] IRLR 740 ) - does not fall to be applied. She pointed out that that principle is a consequence of the ultimate test being one of practicability (not even, be it noted, when the test was first formulated, reasonable practicability), and that the consideration of what further period was “reasonable” did not require so strict an approach. She made it clear that she was not saying that the fact that a claimant had been let down by his advisers was decisive of the question of reasonableness at the second stage, but she submitted that it must be a relevant consideration.[16]I accept the validity of the formal distinction advanced by Ms Hart, but I do not believe that it makes any real difference in practice as regards the question of the relevance of the culpability of the claimant’s legal advisers. 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. If a period is, on that basis, objectively unreasonable, I do not see how the fact that the delay was caused by the claimant’s advisers rather than by himself can make any difference to that conclusion.[17]This approach seems to me right in principle, but it also has the merit that it does not open up an uncomfortable gap between the approach to be taken at the two stages that have to be considered under limb (b). That question is not decisive of the present appeal. I deal with it, as I say, because it was argued before me and will arise when the issue is remitted. But, for the reasons that I have given, the appeal must be allowed and the claim remitted to a different Judge.