Cullinane v Balfour Beatty Engineering Services Ltd & Anor

Under section 139(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992, extension of time involves two distinct stages. The tribunal must first decide whether presentation within the primary period was reasonably practicable. If not, it must decide objectively what further period was reasonable.

The second question concerns the period reasonably required to institute proceedings, having regard to the public interest in prompt claims and the three-month primary limit. It is not simply whether the claimant acted reasonably, nor whether an extension would be just and equitable. Where delay is objectively unreasonable, the fact that it was caused by the claimant’s advisers rather than by the claimant cannot make it reasonable.

The appellant, an electrician, discovered on 25 March 2009 that information about him appeared on a blacklist maintained by the Consulting Association. He sought trade union assistance on 30 March. Proceedings concerning one potential employer were presented on 14 May 2009 under sections 137 and 138 of the Trade Union and Labour Relations (Consolidation) Act 1992.

An Employment Judge held that the claim was out of time. The judge accepted that it had not been reasonably practicable to present the claim within the primary period, but considered the further period of approximately six and a half weeks unreasonable, principally because of delays attributed to the trade union. The appeal concerned whether relevant evidence had been overlooked and whether adviser delay could affect the stage-two assessment.

1. Appeal allowed and claim remitted. The Employment Judge had failed to consider material evidence explaining why the union treated this claim differently from another blacklist claim. The distinction was that the other worker had briefly been employed and then stood down, whereas the appellant had not been offered employment. That distinction could rationally explain why further advice was sought before proceedings were issued.
2. The omission was sufficient to require remission to a different Employment Judge. The Employment Appeal Tribunal declined to find the original decision perverse, since the material did not establish that only one conclusion was possible. Nor was it appropriate to determine the matter itself under section 35 of the Employment Tribunals Act 1996.
3. Section 139(1)(b) requires a two-stage inquiry. The first stage asks whether it was reasonably practicable to present the complaint within the primary three-month period. The second asks what further period, between expiry of that period and presentation, the tribunal considers reasonable.
4. Although the second stage is formally expressed in terms of a reasonable period rather than reasonable practicability, it requires an objective assessment of the causes of delay and the period reasonably required in the circumstances. The tribunal must have regard to the strong public interest in prompt presentation and the short primary limitation period. The question is not simply whether the claimant acted reasonably, and it is not a broad just-and-equitable discretion. If the period is objectively unreasonable, adviser fault does not alter that conclusion.
5. The matter was remitted for a fresh determination, with fuller evidence concerning the reasons for the relevant delays.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s decision and remitted the claim to a different Employment Judge.
• Manchester Employment Tribunal: Employment Judge Brain dismissed the claim as out of time; written reasons were sent on 18 August 2010.