The effect of Acas early conciliation on extending the time limit for bringing an employment tribunal claim has been clarified by the recent decision in Fergusson v. Combat Stress (unreported). Under the relevant provisions of the Employment Rights Act 1996 (ERA), the time limit to present a claim can be extended in two ways, one of which is essentially a "stop the clock" provision where limitation does not run between the day after a prospective claimant contacts Acas (Day A) and the day on which the early conciliation certificate is issued by Acas (Day B). The ERA does not differentiate between cases where a prospective claimant begins early conciliation before their claim arises (for example, before the effective date of termination of their employment) and (the majority) who begin early conciliation after the relevant time limit has started to run.
The tribunals in Chandler v. Thanet District Council ET/2301782/14 and Myers and Wathey v. Nottingham City County Council ET/260113/6/15 and ET/260113/7/15, interpreted the relevant provisions of the ERA to mean that the effect of the "stop the clock" provision is that the number of days in the period starting with the day after Day A and ending with Day B are added on to the limitation period, regardless of whether some of those days fell before the normal limitation period began.
In Fergusson the tribunal held that any days of early conciliation that fell before the date on which the relevant limitation period began would not be added on to the limitation period. The tribunal reasoned that it was not possible to stop the clock for the purposes of the "stop the clock" provision, before the clock had even started. Further, the tribunal found that the purpose of the relevant provisions is to prevent a claimant being disadvantaged by having the usual time period for bringing a claim reduced because they engaged in early conciliation. Where a prospective claimant engages in early conciliation prior to the normal time limit commencing, there can be no such disadvantage.
Whilst all of the cases cited here were first instance decisions and so not binding, there has been some confusion about the effect of early conciliation on time limits in cases where early conciliation begins before the relevant limitation period. The outcome of Fergusson on this point appears to be the common sense approach, and reflects our understanding of the position prior to Chandler.