Nolan v Balfour Beatty Engineering Services (Trade Union Membership)

Under section 139 of the Trade Union and Labour Relations (Consolidation) Act 1992, a tribunal must first decide whether it was not reasonably practicable to present the complaint within three months. If so, it must then decide whether the complaint was presented within a further reasonable period.

The second question is fact-sensitive. The tribunal must consider all the circumstances, including what the claimant knew, what the claimant reasonably ought to have known about the time limit, the reasons for delay, the steps taken to obtain advice, and the public interest in prompt litigation. A mistake about the time limit is not, by itself, sufficient. Assessment of the further reasonable period is primarily for the first-instance tribunal and is difficult to challenge on appeal absent an error of principle or perversity.

Mr Nolan brought complaints concerning alleged refusal of employment because of trade union membership. The complaints related to unsuccessful job applications in 2001 and 2006 and followed the disclosure in 2009 of information held on a construction-industry blacklist.

The Employment Tribunal accepted that it had not been reasonably practicable to present the complaints within the original three-month period. It nevertheless found that the claim, presented eleven weeks after Mr Nolan received the relevant information, was not brought within a reasonable further period. Mr Nolan appealed, arguing that the tribunal had misunderstood his belief about the time limit, applied a rigid rule concerning delay, and reached perverse factual conclusions.

1. Appeal dismissed. The Employment Tribunal had been entitled to find that the complaints were not presented within a reasonable further period under section 139(b) of the Trade Union and Labour Relations (Consolidation) Act 1992.
2. The statutory scheme involves two stages. First, the claimant must establish that it was not reasonably practicable to present the complaint within three months. If that is established, the tribunal must determine what further period was reasonable. The latter question requires an objective assessment of the circumstances, against the background of the primary three-month limit and the public interest in efficient litigation.
3. Relevant considerations include what the claimant knew about the facts and the time limit, what the claimant reasonably ought to have known, why the delay occurred, what steps were taken to obtain advice, and the extent of the delay. The tribunal must consider the claimant’s state of knowledge throughout the period of delay.
4. A bare assertion that the claimant misunderstood the time limit is insufficient. More is required, just as mere ignorance will ordinarily not establish that presentation within the primary period was not reasonably practicable.
5. The Employment Tribunal was entitled to reject Mr Nolan’s evidence that he believed he had three months from receipt of the Information Commissioner’s documents. His ET1 indicated that he knew the claim was late. He then took eleven weeks to present it, without obtaining employment-law advice and with only a sketchy account of steps taken.
6. Assessment of a reasonable further period is primarily for the first-instance tribunal. The appeal tribunal may intervene only for an error of law, failure to consider relevant matters, reliance on irrelevant matters, or a conclusion that no reasonable tribunal could have reached.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Tribunal’s judgment registered on 21 July 2010.