It has been a year since claimants were required to contact ACAS as part of the Early Conciliation process and we are now starting to see some first instance decisions on the complicated ‘stop the clock’ provisions which extend limitation periods for bringing claims in Employment Tribunals. These suggest that Tribunals are resolving ambiguities in the rules in favour of claimants and in doing so, are potentially narrowing the opportunities available to employers to get claims struck out at an early stage.
Two recent cases illustrate this.
Chandler v Thanet District Council, ET
In this case, the employee was dismissed on notice which was due to expire on 14 May (his effective date of termination “EDT”). His primary limitation period therefore ended on 13 August. On 8 May, prior to his EDT, he contacted ACAS and began early conciliation. That process ended without settlement being reached and lasted for 30 days. Mr Chandler issued a claim in the Tribunal on 10 September and his former employers argued that it should be struck out as it had been issued 2 days too late.
The question about who was right hinged on whether the time spent in early conciliation prior to the EDT should be included in the ‘stop the clock’ calculation. The Respondent argued that the first 5 days would constitute a ‘bonus’ and should therefore not be included in the calculation. If correct, limitation would have expired on 8 September, rather than 13 September and the claim could have been struck out.
The claimant argued that he was entitled to add all 30 days to his normal limitation date and had therefore brought the claim in time.
The Tribunal favoured the claimant’s interpretation and allowed his claim to proceed.
Booth v Pasta King UK Ltd, ET
The ‘stop the clock’ provisions provide two options for determining limitation. The first provides that the days spent undergoing ACAS early conciliation are added to the ordinary limitation period to determine the new limitation date.
The second gives the claimant a month from the date s/he receives the ACAS certificate (known as ‘date B’) where the limitation date falls in the period between the start of early conciliation and one month after it ends.
In this case the ordinary limitation date was 1 July and the ACAS early conciliation process lasted 31 days, ending on 21 June. The question the Tribunal had to determine was whether the claimant could choose whichever approach gave him the most time to issue proceedings. This was significant because if the first approach was adopted, Mr Booth had to issue proceedings by 1 August but if the second was correct, he had to issue by 21 July. Mr Booth’s claim was, in fact submitted on 24 July.
Mr Booth's former employer, Pasta King, argued that his claim was out of time and that the provisions apply separately not cumulatively.
The Tribunal acknowledged that it was not clear how these two provisions interact, but ruled that Mr Booth could benefit from which ever provision gave him the most time as this was clearly ‘what Parliament intended’. It said that the days during which the clock stops must first be added to determine the new limitation date, and then, only if this date fell within a month of date B, would time be extended by one month from date B.
Should employers bother trying to strike out claims where similar arguments are in issue?
Both of these decisions are first instance decisions and are not binding on other Tribunals. It is possible that different Tribunals would have reached different decisions and struck out the claims as there are certainly cogent alternative arguments that could be raised.
Until we have a decision from the EAT, the best advice is for employers to weigh up the benefits/risks of raising similar jurisdictional issues, on an individual basis. If the claim has otherwise got merit and will be expensive to defend or to lose, then it is likely to be worth having a go at persuading a Tribunal that these decisions are wrong and to strike out the claims. Claimants will then have to rely on the ‘not reasonably practicable’ or the ‘just and equitable’ tests to get their claims off the starting blocks. It may be difficult to persuade a Tribunal that confusion about deadlines, whilst entirely understandable on one level, meant that they could not issue in time, particularly where the claimant has left things to the last minute.