Prospective claimants, employment law practitioners and HR professionals alike regularly grapple with the question of how Early Conciliation (EC) affects time limits for bringing claims in the Employment Tribunal.
Early Conciliation and time limits
A prospective claimant bringing a claim in the Employment Tribunal must comply with the duty to contact ACAS for EC. Once a claimant has obtained an EC Certificate, they can then proceed with instituting their claim.
EC operates by ‘stopping the clock’ for the early conciliation period. This will affect the limitation date by which the claim needs to be presented to a tribunal, which is three months less one day from the date of dismissal.
The Employment Tribunal has a general discretion to extend time limits in certain circumstances. In the case of an unfair dismissal claim, a tribunal will consider extending time if it was not reasonably practicable to have presented the claim within the original time limit. For discrimination claims, the time limit can be extended if the Employment Tribunal considers that it would be just and equitable to do so.
HMRC v Serra Garau
EC was considered by the Employment Appeal Tribunal (EAT) in the case of HMRC v Serra Garau. In this case the issue was whether the claimant could benefit from an extension of time for a second period of EC in respect of the same matter.
The claimant, Mr Serra Garau, worked for HMRC. On 1 October 2015 he was given notice of the termination of his employment which would expire on 30 December 2015. Mr Garau contacted ACAS on 12 October 2015, and a period of EC took place during the notice period (before his original limitation period had started to run).
The claimant brought a claim of unfair dismissal and disability discrimination. He contacted ACAS again the day before the expiry of the original three month limitation period and ACAS issued a second EC Certificate. On 25 May 2016 Mr Garau issued a claim for disability discrimination and unfair dismissal.
The Tribunal had to decide whether the claims had been presented in time. Mr Garau relied on the second period of EC to establish that he had brought his claims in time. HMRC argued that he could only benefit from one extension of time in respect of the first EC period and, since the first period of EC had taken place prior to the start of the limitation period, the original time limit still applied.
The Employment Tribunal agreed with Mr Garau and HMRC appealed to the EAT.
The EAT agreed with HMRC. It concluded that only one period of EC is required under statute, and that the claimant should not enjoy any further extension of time in respect of the first EC period. The EC period had concluded before the limitation period began to run, and therefore the ‘clock’ had never started ticking in this case. The second EC period had no bearing on the time limit. Accordingly, the claim was out of time.
Impact of the case
This decision provides useful clarity that any period of EC that takes place before time starts to run does not extend the time limit.
The decision also serves as a reminder that there is only one mandatory EC process. This should not detract from the fact that conciliation through ACAS is valuable and can be a very useful tool for employees and employers.