The early conciliation process (EC) has been in place for 3 years and has made the process of determining the correct limitation date more difficult. Our clients often ask us whether it is worth raising jurisdictional points about whether the claimant has followed the mandatory EC process.
Jo Moseley provides some guidance.
There have been a number of cases which have provided some clarity, although a word of caution, as many of the cases are first instance ET decisions only so may not be binding. Below is a summary of some of the principles that have emerged from the cases so far.
1 Claimants only have to commence EC once
The rules state that a claimant must commence EC in relation to “any matter” s/he wishes to raise at an employment tribunal. This has been broadly interpreted and can embrace a range of events, including events that arose after EC. This means that claimants do not have to engage in a second period of EC to amend a claim or bring a new cause of action.
In practice, the Tribunal will not normally know what types of claims were the subject of EC, and whether those claims were the same as the ones presented to the Tribunal. Provided there is an EC Certificate, the Tribunal will not usually look behind that.
Following the introduction of fees, ETs are more likely to allow claimants to amend an existing claim rather than having to issue a new one and incur an additional fee.
2 The stop the clock provisions only apply to the first period of EC
Even though it is not necessary to do so, there is nothing to stop a claimant from commencing a second period of EC for claims or issues that they did not raise during the initial EC. ACAS will accept the application and deal with it in the normal way. If the claimant does this, they will only benefit from the ‘stop the clock’ provisions in respect of the first period of EC and not for any additional EC. This is because claimants are only required to undergo one EC, so any additional periods of EC will be considered to be purely voluntary.
3 Claimants (probably) have the benefit of the stop the clock provisions that provide them with the longest time to issue an ET
The stop the clock provisions are contained in section 207B ERA 1996 which states that:
(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A (the day the claimant contacted ACAS to begin EC) and ending with Day B (the day the EC Certificate is issued) is not to be counted.
(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.
A first instance decision has found that the limit in (4) applies to the limitation date after it has been extended under (3) rather than to the original limitation date. This suggests that claimants are able to take advantage of whichever provision gives them the longest time to issue proceedings.
4 The stop the clock provisions will not start to run until the primary limitation period commences
Claimants will only benefit from the stop the clock provisions once limitation starts to run. If limitation has not started (because, for example, EC was concluded before the EDT in a dismissal case) then the claimant will not benefit from these provisions and must commence proceedings within the primary limitation period.
Once the primary limitation period starts to run, the stop the clock provisions apply but only in respect of the days of EC undertaken after the EDT has started.
EDT – 17 November 2016 – primary limitation period is therefore 16 February 2017
EC commences – 10 November 2016 (Date “A”)
EC certificate issued – 10 December 2016 (Date “B”)
Clock stops from 17 November (start of EDT) to 10 December = 24 days
Claim must be issued no later than 12 March 2017
However, using the same EDT, if the claimant commenced EC on 2 September 2016 and the certificate was issued on 2 October, the stop the clock provisions would not apply and the limitation period would be 16 February 2017.
5 If the claimant does not commence EC until after the primary limitation period, they will only be able to proceed with their claim if the ET extends time
A claimant is required to commence EC within the primary limitation period that applies to the case they wish to run. However, if they fail to do this and, for example, contact ACAS after this period they may still be able to continue with their claim/s. In these circumstances the stop the clock provisions will not apply and the claimant will be reliant upon the Tribunal extending time.
The provisions relating to EC do not supersede the powers tribunals have to extend time limits under section 123 ERA 1996 and are entirely independent of them. In unfair dismissal claims a tribunal will only extend time if the claimant persuades the tribunal that it was not reasonably practicable for the claimant to issue proceedings within the primary limitation period and that proceedings were issued as soon as possible afterwards. In discrimination cases the test is whether it would be just and equitable to extend time given the reasons for the delay. In practice, it is easier to persuade a tribunal to extend time in a discrimination claim than in an unfair dismissal complaint.
6 If the claimant does not commence EC before issuing proceedings, they will not be able to proceed with their claim
Unless the claim is exempted from the requirement to enter into EC, a claimant will not be able to start proceedings without including the EC certificate number on the ET1. Tribunal rules provide that a claim will be rejected if it does not contain an EC number or the number provided is incorrect.
7 Getting the name of the respondent wrong will not necessarily invalidate the EC certificate
The Tribunal rules provide that a claim can be rejected if the name of the respondent on the claim form is not the same as the name of the prospective respondent on the EC certificate to which the EC number relates. However, provided the claimant is “shooting in the right direction”, and the difference in names is not significant, EC will normally be considered to have been complied with and the claimant will be allowed to proceed with the claim/s.
8 A claimant must go through separate EC for each respondent they wish to bring a claim against
Following an amendment to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2014, a claimant must complete a separate EC form for each prospective respondent (if there is more than one). This may result in the claimant having different limitation periods.
It is always worth taking advice if you believe that the claimant has not complied with time limits either in respect of EC or in filing their ET1.