Balfour Beatty Engineering Services v Allen

Under the statutory time-limit extension, reasonable practicability and the reasonableness of the further period are distinct inquiries. The first concerns the steps available to the employee before expiry of the primary limit. The second concerns whether the period actually taken after expiry was reasonable.

The conduct of legal advisers is relevant to the second inquiry, including whether their error amounted to negligence, but it does not automatically make the further period unreasonable. The tribunal must examine the entire period carefully, make findings on material dates and delays, and explain its evaluation of advisers’ conduct. Failure to do so is an error of law requiring remission.

Mr Allen presented claims concerning alleged blacklisting and refusals of employment outside the primary limitation periods under Trade Union and Labour Relations (Consolidation) Act 1992, s 139. An Employment Judge held that it had not been reasonably practicable to present the claims in time and that they had then been presented within a reasonable further period.

Balfour Beatty appealed. The appeal concerned the adequacy of the factual findings, the relevance of the first and second solicitors’ conduct, the distinction between the two limbs of the statutory extension, and the finding concerning re-engagement at the Pfizer site.

1. Appeal allowed. The claims were remitted for a complete rehearing before a differently constituted Employment Tribunal.

2. Section 139(1)(b) contains two distinct inquiries. Reasonable practicability concerns whether the complaint could have been presented before expiry of the three-month period. The further-period inquiry concerns whether the period between expiry and presentation was reasonable.

3. The conduct of skilled advisers is relevant to the second inquiry. Whether an adviser’s error was negligent is also a highly relevant consideration. However, the Dedman principle cannot automatically be transferred so that adviser negligence is necessarily fatal to the reasonableness of the further period.

4. The Employment Judge erred by treating the claimant and his solicitors as effectively separate when assessing the delay. She also failed to investigate the nature of the first solicitors’ conduct and did not adequately explain the treatment of the second solicitors’ ten-day period.

5. The whole further period required careful and detailed scrutiny. Material inconsistencies about when the information was received, passed to solicitors and transferred between firms required findings of fact. The Employment Judge’s failure to resolve them prevented a lawful assessment of reasonableness.

6. The Pfizer finding was also unsafe because the explanation in one paragraph appeared inconsistent with the chronology in Balfour Kilpatrick Limited v Acheson & Ors. The issue required reconsideration on the evidence.

7. A rehearing was necessary because further evidence was required concerning the solicitors’ error and the Pfizer re-employment issue.

• Employment Appeal Tribunal: allowed the appeal from the Employment Judge’s decision at Manchester on 8 February 2011, sent to the parties on 18 February 2011, and remitted the claims for a complete rehearing before a differently constituted Employment Tribunal.